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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


-Mk^> 


PRECEDENTS 


INDICTMENTS  AND  PLEAS. 


PRECEDENTS 


INDICTMENTS  AND  PLEAS, 


ADAPTED  TO  THE  USE  BOTH  OF  THE 


COURTS  OF  THE  UNITED  STATES 


AND   THOSE  OF   ALL  THE 


SEVERAL  STATES: 


TOGETHER  WITH   NOTES  ON 


CRIMINAL  PLEADING  AND  PRACTICE, 


EMBRACING  THE 


ENGLISH  AND  AMERICAN    AUTHORITIES    GENERALLY. 


FRANCIS  WHARTON,  LL.  D., 

ill  '  ' 

AUTHOR  OF   "a  TREATISE   ON  AMERICAN   CRIMINAL  LAW;"    "A  TREATISE  ON  THE 

LAW  OF  HOMICIDE  IN  THE   UNITED    STATES;"    "A  TREATISE  ON 

MEDICAL  JURISPRUDENCE,"    ETC.,  ETC. 


THIRD  AND  REVISED  EDITION. 
VOL.  L 


PHILADELPHIA: 

KAY  AND  BROTHER,  17  &  19   SOUTH  SIXTH   STREET, 

LAW  BOOKSELLERS,   PUBLISHERS   AND   IMPORTERS. 

1871. 


/ 


I 


Entered  according  to  the  Act  of  Congress,  in  the  year  1848,  by 

Kay  and  Brother, 

in  the  Office  of  the  Clerk  of  the  District  Court  of  the  United  States  in  and  for  the 

Eastern  District  of  Pennsylvania. 

Entered  according  to  the  Act  of  Congress,  in  the  year  1857,  by 

Kay  and  Brother, 

in  the  Office  of  the  Clerk  of  the  District  Court  of  the  United  States  in  and  for  the 

Eastern  District  of  Pennsylvania. 

Entered  according  to  Act  of  Congress,  in  the  year  1871,  by 

Kay  and  Brother, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Xi^cU^-^A. . 


ErVERSIDE,  caubbisqb: 
FEINTED  B;  H.  0.  HOUGHTON  AND  COUFANT. 


PREFACE   TO   THIRD  EDITION. 


In  the  following  pages  I  have  introduced  a  series  of  new 
Precedents,  based  on  recent  legislation,  dropping  such 
forms  as  have  become  obsolete ;  and  I  have  added  to 
the  notes  such  English  and  American  decisions  on  Crim- 
inal Pleading  as  have  appeared  since  the  last  edition  was 

prepared. 

R  W. 

March,  1871. 


PREFACE   TO   SECOND   EDITION. 


In  this  edition  a  large  number  of  new  precedents  have 
been  added,  and  those  given  in  the  former  edition  modi- 
fied, so  as  to  adapt  the  collection,  as  far  as  is  practicable,  to 
the  practice  of  the  criminal  courts  at  the  present  period 
throughout  the  entire  Union.  In  addition  to  this,  both  the 
text  and  the  notes  have  been  remodelled  and  classified,  so 
as  to  place  them  on  a  uniform  basis,  both  as  to  interchange 
of  references,  and  harmony  of  subject  matter,  with  the 
fourth  and  revised  edition  of  my  work  on  American  Crim- 
inal Law,  which  issues  simultaneously  with  this  through 
the  press. 

F.  W. 

May  1,  1857. 

vi 


PREFACE 


On  submitting  to  the  profession,  in  1846,  a  Treatise  on 
American  Criminal  Law,  my  first  design  was  to  annex  to  it 
a  Collection  of  Precedents  of  Indictments  and  Pleas  suited 
to  the  use  of  practitioners  throughout  the  Union.  The 
great  number  of  forms,  however,  which  the  varying  systems 
of  the  federal  and  state  courts  made  necessary,  and  the 
large  amount  of  notes  called  for,  both  by  the  newness  of 
the  material  and  by  the  increasing  intricacy  of  criminal 
pleading,  led  to  a  variation  from  my  original  plan.  The 
forms  which  are  now  presented  may  be  considered  under 
three  classes :  first,  those  which  have  been  directly  sus- 
tained by  the  courts;  second,  those  which  have-  been 
prepared  by  eminent  pleaders,  but  which  have  not  been 
judicially  tested ;  and  third,  those  which  have  been  drawn 
froin  the  English  books.  Those  composing  the  Jirst  class, 
wherever  the  pleading  in  the  particular  case  is  not  set  out 
in  the  report,  have  been  made  up  by  recourse  to  the  rec- 
ords of  the  court  in  which  the  trial  took  place.  In  pre- 
paring* the  second,  I  have  to  acknowledge  my  indebtedness 
to  the  printed  volume  of  Mr.  Daniel  Davis,  for  many  years 
Solicitor-general  of  Massachusetts,  and  to  a  manuscript  col- 
lection, begun  in  1778,  by  Mr.  Bradford,  Attorney-general 
successively  of  Pennsylvania  and  of  the  United  States,  and 
continued  by  Mr.  J.  D.  Sergeant,  Mr.  Jared  Ingersoll,  Mr. 
Charles  Lee,  Mr.  Rawle,  Mr.  A.  J.  Dallas,  and  Mr.  Rush, 
who  were  either  his  contemporaries,  or  his  immediate  suc- 
cessors, in  the  state  or  federal  prosecutions.  In  selecting 
the  forms  which  fall  under  the  third  head,  I  have  relied 
chiefly  on  the  treatises  of  Mr.  Starkie,  Mr.  Archbold,  and 

vii 


PREFACE. 

Mr.  Dickinson,  introducing,  in  addition,  a  series  of  indict- 
ments which  have  been  sustained  by  the  English  courts 
since  the  date  of  those  publications. 

In  the  first  book  is  given  a  general  form  of  indictment 
with  caption,  commencement,  and  conclusion ;  adapted  to 
the  federal  courts,  and  to  those  of  the  several  states ;  and 
to  each  averment  in  the  text  is  attached  a  note  incorporat- 
ing the  doctrine  bearing  upon  it.     The  indictments  relat- 
ing to  each  individual  offence  are  in  like  manner  preceded 
by  a  general  preliminary  form,  to  which  are  appended  notes, 
divided  on  the  same  principle  of  analysis.     On  such  a  plan, 
the  duty  of  the  Editor  is  first  to  separate  thp  authorities, 
English  and  American,  into  compartments  corresponding 
in  subject  matter  with  the  several  averments  in  the  indict- 
ment, and  then  to  connect  with  each  of  them,  in  the  order 
in  which  they  stand,  its  own  particular  portion  of  com- 
mentary.    It  is  plain,  that  the  value  of  a  work  thus  pre- 
pared must  depend  upon  the  fidelity  with  which,  both  in 
text  and   note,  the  settled  law  is  observed  -,  and  I  have 
thought  it  judicious,  therefore,  when  referring  to  the  Eng- 
lish learning,  to  depend  chiefly  on  the  expression  given'to 
it  by  the  recognized  English  commentators.     On  this  prin- 
ciple, I  have  placed  great  reliance  on  the  very  elaborate 
and  lucid  notes  by  Mr.  Serjeant  Talfourd  to  Dickinson's 
Quarter  Sessions,  many  of  which  I  have  incorporated  at 
large,  and  which  may  be  safely  referred  to,  as  containing 
not  only  the  most  modern,  but  the  most  succinct  exposition, 
of  th6  English  crown  law  of  pleading.     I  should  be  doing 
great  injustice,  not  only  to  myself,  but  to  others  to  whose 
prompt  and  intelligent  kindness  I  am  under  the  strongest 
obligations,  did  I  withhold,  at  the  close  of  this  undertaking, 
my  thanks   to  the  many  professional  brethren,  both  here 
and  throughout  the    Union,  from  whom  I  have  received 
aid  during  its  progress. 

Philadelphia,  November,  1848. 
viii 


ANALYTICAL   TABLE. 


BOOK  I. 

GENERAL  FORM  OF  INDICTMENT. 

CHAPTER  I. 

CAPTION. 

(1)  General  form  of  caption. 

CHAPTER  II. 

GENERAL  FORM  OF  INDICTMENT  AT  COMMON  LAW. 

(2)  Skeleton  of  indictment  generally. 

CHAPTER  III. 

COMMENCEMENTS    AND    CONCLUSIONS    IN    THE    FEDERAL   AND    STATE 

COURTS. 

I.  Federal  Courts. 

(3)  Commencement  in   District  of  Massachusetts,   where   the 

offence  was  committed  on  board  of  an  American  vessel 
within  the  jurisdiction  of  a  foreign  state. 

(4)  Same,  where  the  offence  was  committed  on   an   American 

ship  within  the  jurisdiction  of  the  United  States. 

(5)  Same,  where  the  offence  was  committed  on  the  high  seas  on 

board  of  an  American  vessel. 

(6)  Same,  where  offence  was  committed  on  high  seas  on  board 

a   vessel   whose   name   was   unknown,    belonging   to   an 
American  citizen  whose  name  is  given. 

(7)  Same,   where   offence  was   committed   by  person  who   be- 

longed to  a  vessel   owned  by  American   citizens,  whose 

ix 


ANALYTICAL  TABLE.  [BOOK    I. 

names  are  known,  the  vessel  being  at  the  time  in  the  juris- 
diction of  a  foreign  state. 

(8)  Same,  where  offence  was  committed  in  navy  yard. 

(9)  Same,  where  offence  was  committed  on  ground  occupied  for 

an  armory  or  arsenal. 

(10)  Commencement  in  Southern  District  of  New  York. 

(11)  Commencement  in  Eastern  District  of  Pennsylvania. 

(12)  Commencement  in  District  of  Virginia. 

(13)  Conclusion  in  the  District  of  Massachusetts. 

(14)  Conclusion  in  Southern  District  of  New  York. 

(15)  Conclusion  in  Eastern  District  of  Pennsylvania. 

(16)  Conclusion  in  District  of  Virginia. 

(17)  Final  count  where  the  offender  was  first  apprehended  in  the 

particular  district. 

(18)  Final  count  where  the  offender  was  first  brought  into  the 

particular  district. 

II.  State  Courts.  • 

(19)  Maine.     Commencement. 

(20)  Maine.     Conclusion  at  common  law. 

(21)  Maine.     Conclusion  for  a  statutory  offence. 

(22)  New  Hampshire.     Commencement. 

(23)  New  Hampshire.     Conclusion  for  a  common  law  offence. 

(24)  New  Hampshire.     Conclusion  for  a  statutory  offence. 

(25)  Vermont.     Commencement. 

(26)  Vermont.     Conclusion  for  common  law  offence. 

(27)  Vermont.     Conclusion  for  statutory  offence. 

(28)  Massachusetts.     Commencement. 

(29)  Massachusetts.     Conclusion  for  a  common  law  offence. 

(30)  Massachusetts.     Conclusion  for  a  statutory  offence. 

(31)  Connecticut.     Commencement. 

(32)  Connecticut.     Conclusion. 

(33)  Connecticut.     Information  by  attorney  for  the  State. 

(34)  Connecticut.     Information  by  grand  juror. 

(35)  Rhode  Island.     Commencement. 

(36)  Rhode  Island.     Conclusion  for  common  law  offence. 

(37)  Rhode  Island.     Conclusion  for  statutory  offence. 

(38)  New  York.     Commencement. 

(39)  New  York.     Conclusion  for  common  law  offence. 

(40)  New  York.     Conclusion  for  statutory  offence. 

(41)  New  Jersey.     Commencement. 

(42)  New  Jersey.     Conclusion  for  common  law  offence. 

X 


BOOK   I.]  ANALYTICAL   TABLE. 

(43)  New  Jersey.     Conclusion  for  statutory  offence. 

(44)  Pennsylvania.     Commencement. 

(45)  Pennsylvania.     Conclusion  for  common  law  offence. 

(46)  Pennsylvania.     Conclusion  for  statutory  offence. 

(47)  Delaware.     Commencement. 

(48)  Delaware.     Conclusion  for  common  law  offence. 

(49)  Delaware.     Conclusion  for  statutory  offence. 

(50)  Maryland.     Commencement. 

(51)  Maryland.     Conclusion  for  common  law  offence. 

(52)  Maryland.     Conclusion  for  statutory  offence. 

(53)  Virginia.     Commencement. 

(54)  Virginia.     Conclusion  for  common  law  offence. 

(55)  Virginia.     Conclusion  for  statutory  offence. 

(56)  North  Carolina.     Commencement. 

(57)  North  Carolina.     Conclusion  for  common  law  offence. 

(58)  North  Carolina.     Conclusion  for  statutory  offence. 

(59)  South  Carolina.     Commencement. 

(60)  South  Carolina.     Conclusion  for  common  law  offence. 

(61)  South  Carolina.     Conclusion  for  statutory  offence. 

(62)  Georgia.     Commencement. 

(63)  Georgia.     Conclusion  for  common  law  offence. 

(64)  Georgia.     Conclusion  for  statutory  offence. 

(65)  Alabama.     Commencement. 

(66)  Alabama.     Conclusion  for  common  law  offence. 

(67)  Alabama.     Conclusion  for  statutory  offence. 

(68)  Mississippi.     Commencement. 

(69)  Mississippi.     Conclusion  for  common  law  offence. 

(70)  Mississippi.     Conclusion  for  statutory  offence. 

(71)  Louisiana.     Commencement. 

(72)  Louisiana.     Conclusion  generally. 

(73)  Michigan.     Commencement. 

(74)  Michigan.     Conclusion  for  common  law  offence. 

(75)  Michigan.     Conclusion  for  statutory  offence. 

(76)  Ohio.     Commencement. 

(77)  Ohio.     Conclusion  for  common  law  offence. 

(78)  Ohio.     Conclusion  for  statutory  offence. 

(79)  Indiana.     Commencement. 

(80)  Indiana.     Conclusion  for  statutory  offence. 

(81)  Indiana.     Conclusion  for  common  law  offence. 

(82)  Illinois.     Commencement. 

(83)  Illinois.     Conclusion  for  common  law  offence. 

(84)  Illinois.     Conclusion  for  statutory  offence. 

xi 


ANALYTICAL   TABLE.  [BOOK   II. 

(85)  Kentucky..    Commencement. 

(86)  Kentucky.     Conclusion  for  common  law  offence. 

(87)  Kentucky.     Conclusion  for  statutory  offence. 

(88)  Tennessee.     Commencement. 

(89)  Tennessee.     Conclusion  for  common  law  offence. 

(90)  Tennessee.     Conclusion  for  statutory  offence. 

(91)  Missouri.     Commencement. 

(92)  Missouri.     Conclusion  for  common  law  offence. 

(93)  Missouri.     Conclusion  for  statutory  offence. 

(94)  Arkansas.     Commencement. 

(95)  Arkansas.     Conclusion  for  common  law  offence. 

(96)  Arkansas.     Conclusion  for  statutory  offence. 

BOOK  II. 

CHAPTER  I. 

ACCESSARIES. 

(97)  Against  accessary  before  the  fact,  together  with  the  principal. 

(98)  Against  an  accessary  before  the   fact,  the  principal   being 

convicted. 

(99)  Against  accessary  after  the  fact  with  the  principal. 

(100)  Against  an  accessary  after  the  fact,  the  principal  being  con- 

victed. 

(101)  Against  accessary  before  the   fact   generally  in   Massachu- 

setts. 

(102)  Indictment  against  an  accessary  before  the  fact,  in  murder, 

at  common  law. 

(103)  Against  accessaries  before  the  fact  in  Massachusetts. 

(104)  Against  an  accessary  for  harboring  a  principal  felon  in  mur- 

der, 

(105)  Against  an  accessary  to  a  burglary,  after  th^  fact. 

(106)  Against  principal  and  accessaries  before   the  fact,  in   bur- 

glary. 

(107)  Against  accessary  before  the  fact  to   suicide.     First  count 

against  suicide  as  principal  in  the  first  degree,  and  against 
party  aiding  him  as  accessary  before  the  fact. 

(108)  Second  count  against  defendant  for  murdering  suicide. 

(109)  Against  a  defendant  in  murder  who  is  an  accessary  before 

the  fact  in  one  county  to  a  murder  committed  in  another. 

(110)  [For  other  forms  of  indictments  against  accessaries  in  homi- 

cide, see  post,  132,  156,  &c.] 
xii 


BOOK   III.]  ANALYTICAL   TABLE. 

(111)  Larceny.     Against  principal  and  accessary  before  the  fact. 

(112)  Against  accessary  for  receiving  stolen  goods. 

(113)  Against  accessary  for  receiving  the  principal  felon. 


BOOK  III. 

OFFENCES  AGAINST  THE  PERSON. 

CHAPTER  I. 
HOMICIDE. 

(114)  General  form  of  indictment. 

(115)  Murder.     By  shooting  with  a  pistol. 

(116)  Murder.     By  cutting  the  throat. 

(117)  Murder.     Against  principal  in  the  first  and  in  the  second 

degree,  for  shooting  with  a  pistol. 

(118)  Against  principal  in  the  first  and  principal  in  the  second  de 

gree.     Hanging. 

(119)  Second  count.     Against  same.     Beating  and  hanging. 

(120)  Murder.  Striking  with  a  poker. 

(121)  Murder.  By  riding  over  with  a  horse. 

(122)  Murder.  By  drowning. 

(123)  Murder.  By  strangling. 

(124)  Second  count.      By  strangling  and  stabbing  with  un- 

known persons. 

(125)  Murder.     By  poisoning  with  arsenic. 

(126)  Murder.     By  burning  a  house  where  the  deceased  was   at 

the  time. 

(127)  Second  count.    Averring  a  preconceived  intention  to 

kill. 

(128)  Murder.     First  count,  by  choking  against  two — one  as  prin- 

cipal in  the  first  degree,  and  the  other  in  the  second  de- 
gree. 

(129)  Second  count,  by  choking  and  beating.     Against  two  — 

one  as  principal  in  the  first  degree,  the  other  in  sec- 
ond degree. 

(130)  Murder  by  poisoning.     First  count  with  arsenic  in  chicken 

soup. 

(131)  Second  count.     Against  one  defendant  as  principal  in 

the  first,  and  the  other  as  principal  in  the  second  de- 
gree. 

xiii 


ANALYTICAL   TABLE.  [bOOK   IIL 

(132)  Third  count.     Against  one  as  principal  and  the  other  as 

accessary  before  the  fact. 

(133)  Murder  by  placing  poison  so  as  to  be  mistaken  for  medicine. 

(134)  Murder  of  a  child  by  poison. 

(135)  Murder  by  mixing  white  arsenic  with  wine,  and  sending  it 

to  deceased.  &c. 

(136)  Murder  by  poisoning.     First  count,  mixing  white  arsenic  in 

chocolate. 

(137)  Second  count.     Mixing  arsenic  in  tea. 

(138)  Murder  by  giving  to  the  deceased  poison,  and  thereby  aiding 

her  in  suicide. 

(139)  Murder  in  the  first  degree  in  Ohio.     By  obstructing  a  rail- 

road track. 

(140)  Murder  in  the  first  degree  in  Ohio.     By  sending  to  the  de- 

ceased a  box  containing  an  iron  tube,  gunpowder,  bullets, 
&c.,  artfully  arranged  so  as  to  explode  on  attempting  to 
open  it. 

(141)  Murder  in  the  first  degree  in  Ohio.     By  a  father,  chaining 

and  confining  his  infant  daughter  several  nights  during 
cold  weather  without  clothing  or  fire. 

(142)  Second  count.     Not  alleging  a  chaining. 
(142^)  Murder  by  stabbing,  under  Ohio  statute. 

(143)  Murder  by  forcing  a  sick  person  into  the  street. 

(144)  Murder  of  an  infant  by  suffocation. 

(145)  Murder  by  stamping,  beating,  and  kicking. 

(146)  Murder  by  beating  with  fists  and  kicking  on  the  ground,  no 

mortal  wound  being  discovered. 

(147)  For  stabbing,  casting  into  the  sea,  and  drowning  thie  deceased 

on  the  high  sea,  &c. 

(148)  Knocking  to  the  ground,  and  beating,  kicking,  and  wounding. 

(149)  Murder  by  striking  with  stones. 

(150)  Murder  by  casting  a  stone. 

(151)  Murder  by  striking  with  a  stone. 

(152)  By  striking  with  an  axe  on  the  neck. 

(153)  By  striking  with  a  knife  on  the  hip,  the  death  occurring  in 

another  State. 

(155)  Murder  by  stabbing  with  a  knife. 

(156)  Murder.     Against  J.    T.   for   shooting   the   deceased,    and 

against  A.  S.  for  aiding  and  abetting. 

(157)  Murder  of  a  bastard  child. 

(158)  Throwing  a  bastard  child  in  a  privy. 

(159)  Smothering  a  bastard  child  in  a  linen  cloth. 

xiv 


BOOK   III.]  ANALYTICAL   TABLE. 

(160)  Murder,  in  Pennsylvania,  of  a  bastard  child  by  strangling. 

(161)  Murder.     By  starving  apprentice. 

(162)  Manslaughter   by  neglect.     First  count,  that  the  deceased 

was  the  apprentice  of  the  prisoner,  and  died  from  neglect 
of  prisoner  to  supply  him  with  food,  &c. 

(163)  Second  count,  charging  killing  by  overwork  and  beating. 

(164)  Manslaughter.     Against  a  woman    for  exposing   her  infant 

child  so  as  to  produce  death. 

(165)  Manslaughter.     By  forcing  an  aged  woman  out  of  her  house 

in  the  night,  ducking,  tarring,  feathering,  and  whipping 
her. 

(166)  Against   the  keeper  of  an  asylum  for  pauper  children,  for 

not  supplying  one  of  them  with  proper  food  and  lodging, 
whereby  the  child  died. 

(167)  Manslaughter,  by  striking  with  a  stone. 

(168)  Manslaughter.     By  giving  to  the  deceased  large  quantities 

of  spirituous  liquors,  of  which  he  died. 

(169)  Against  driver  of  a  cart  for  driving  over  deceased. 

(170)  Manslaughter.     Against  a  husband  for  neglecting  to  provide 

shelter  for  his  wife. 

(171)  Murder,  in   a   duel  fought  without  the  State.     Eev.  Sts.  of 

Mass.  ch.  125,  §  3. 

(172)  Manslaughter  in  second  degree  against  captain  and  engineer 

of  a  steamboat,  under  New  York  Eev.  Sts.  p.  531,  §  46. 

(173)  Against  the  engineer  of  a  steamboat,  for  so  negligently  man- 

aging the  engine  that  the  boiler  burst  and  thereby  caused 
the  death  of  a  passenger. 

(174)  Against  agent  of  company  for  neglecting  to  give  a  proper 

signal   to  denote  the  obstruction  of  a   line   of  railway, 
whereby  a  collision  took  place  and  a  passenger  was  killed. 

(175)  Against  the  driver  and  stoker  of  a  railway  engine,  for  negli- 

gently driving  against   another  engine,  whereby  the   de- 
ceased met  his  death. 

(176)  Involuntary  manslaughter  in    Pennsylvania,  by  striking  an 

infant  with  a  dray. 

(177)  Murder  on  the  high  seas.     General  form  as  used  in  the 

United  States  Courts. 

(178)  Murder  on  the   high  seas,  by  striking  with  a  handspike. 

Adapted  to  United  States  Courts. 

(179)  Striking  with  a  glass  bottle,  on  the  forehead,  on  board  an 

American  vessel   in  a  foreign  jurisdiction.     Adapted  to 
United  States  Courts. 

XV 


ANALYTICAL   TABLE.  [BOOK   IIL 

(180)  Against  a  mother  for  drowning  her  child,  by  throwing  it  from 

a  steamboat  on  Long  Island  Sound. 

Second  count.     Omitting  averment  of  relationship,  and 
charging  the  sex  to  be  unknown. 

(181)  Murder  on  the  high  seas,  with  a  hatchet. 

(182)  Manslaughter  on  the  high  seas. 

Second  count.     Same  on  a  long-boat  belonging  to  J.  P. 
v.,  &c. 

(183)  Misdemeanor  in  concealing  death  of  bastard  child  by  casting 

it  into  a  well,  under  the  Pennsylvania  statute. 

(184)  Same,  where  means  of  concealment  are  not  stated. 

(185)  Endeavor  to  conceal  the  death  of  a  dead  child,  under  the 

English  statute. 

CHAPTER  II. 

RAPE. 

(186)  General  form. 

(187)  For  carnally  knowing  and  abusing  a  woman  child  under  the 

age  of  ten  years.    Massachusetts  Stat.  1852,  ch.  259,  §  2. 

(188)  Rape.     Upon  a  female  other  than  a  daughter  or  a  sister  of 

the  defendant,  under  Ohio  statute,  p.  48,  §  2. 

(189)  Rape.     Upon  a  daughter  or  sister  of  the  defendant,  under 

Ohio  statute,  p.  48,  §  1. 

(190)  Rape.     Abusing  female  child  with  her  consent,  under  Ohio 

statute,  p.  48,  §  2. 
[For  assaults  with  intent  to  ravish,  see  253,  &c.] 

CHAPTER  ni. 

SODOMY. 

(191)  General  form. 

CHAPTER  IV. 

MAYHEM. 

(192)  Indictment  on  Coventry  Act,  22  and  23  Car.  II.  c.  1,  for  fel- 

ony, by  slitting  a  nose,  and  against  the  aider  and  abettor. 

(193)  Mayhem  by  slitting  the  nose,  under  the  Rev.  Sts.  Mass.  ch. 

125,  §  10. 

(194)  Mayhem  by  cutting  out  one  of  the  testicles,  under  the  Penn- 

sylvania statute, 
xvi 


BOOK  III.]  ANALYTICAL   TABLE. 

(195)  Against  principal  in  first  and  second  degree  for  mayhem  in 

biting  off  an  ear,  under  the  statute  of  Alabama. 

(196)  Biting  off  an  ear,  under  Rev.  Stat.  N.  C.  eh.  34,  §  48. 

(197)  Maliciously  breaking  prosecutor's  arm  with  intent  to  maim 

him,  under  the  Alabama  statute. 


CHAPTER  V. 

ABDUCTION  —  KIDNAPPING. 

(200)  Abduction  under  New  York  Rev.  Stat.  vol.  2,  p.  553,  §  25. 

(201)  Abduction  of  a  white  person,  under  Ohio  statute,  p.  51,  §  14. 

(202)  Attempt  to  carry  a  white  person  out  of  the  State,  under  Ohio 

statute,  p.  51,  §  14. 

(203)  Kidnapping.     Attempt  to  carry  off  a  black   person,  under 

Ohio  statute,  p.  51,  §  15. 

CHAPTER  VI. 

ABORTION. 

(204)  -Production  of  an  abortion  at  common  law.     First  count.   By 

assault  and  thrusting  an  instrument  in  the  prosecutrix' 
womb,  she  being  "  big,  quick,  and  pregnant." 

(205)  Second  count,  averring  prosecutrix  to  be  ''  big  and  preg- 

nant." 

(206)  Third  count,  merely  averring  pregnancy  in  same. 

(207)  Assault  on  a  woman  quick  with  child,  so  that  the  child  was 

brought  forth  dead.     (At  common  law.) 

(208)  Against  A.  the  principal,  for  producing  an  abortion  by  using 

an  instrument  on  the  person  of  a  third  party,  and  B.  an 
accessary  before  the  fact,  under  the  English  statute. 

(209)  Administering  a  potion  at  common  law  with  intent  to  pro- 

duce abortion. 

(210)  Producing  abortion  in  New  York,  2  R.  S.  550,  551,"  §  9,  2d  ed. 
(210|^)   Same  under  Massachusetts  statute. 

(211)  Administering  medicine  under  the  Indiana  statute,  with  in- 

tent to  produce  abortion. 
■(212)  Attempt  to  procure  abortion  by  administering  a  drug,  under 
Ohio  statute. 
VOL.  I.-  b  xvii 


ANALYTICAL   TABLE.  [BOOK  IIL 


CHAPTER  VII. 

ASSAULTS. 

(213)  Indictment  for  a  common  assault. 

(214)  Assault  without  battery. 

(215)  Assault  and  battery.     Massachusetts  form. 

(216)  Information  in  Connecticut  for  assault  and  battery  and  breach 

of  peace,  with  commencement  and  conclusion. 

(217)  Assault  and  battery  in  New  York,  with  commencement  and 

conclusion. 

(218)  Assault  and  battery  in  New  Jersey,  with  commencement  and 

conclusion. 

(219)  Assault  and  battery  in  Pennsylvania,  with   commencement 

and  conclusion. 

(220)  Threatening  in  a  menacing  manner,  under  Ohio  statute. 

(221)  Assault  and  encouraging  a  dog  to  bite. 

(222)  Assault  and  tearing  prosecutor's  hair. 

(223)  Assaulting  the  driver  of  a  chaise,  and  overturning  the  chaise 

with  the  wheel  of  a  cart. 

(224)  Assault  and  beating  out  an  eye. 

(225)  Assault  and  riding  over  a  person  with  a  horse. 

(226)  [For  assaults  on  a  pregnant  woman,  see  204,  &c,] 

(227)  Assault  by  administering  cantharides  to  prosecutor. 

(228)  Assault  with  intent  to  kill  an  infirm  person,  by  throwing  him 

on  the  ground  and  beating  him. 

(229)  For  throwing  corrosive  fluid,  with  intent,  &c. 

(230)  [See  for  "  Assaults  with  intent,"  &c.,  242,  &c.,  1046,  &c.] 

(231)  Assault  with  beating  and  wounding  on  the  high  seas. 

(232)  Assault  on  high  seas,  by  binding  the  prosecutor  and  forcing 

an  iron  bolt  down  his  throat. 

(233)  Stabbing  with  intent  to  wound,  under  Ohio  statute,  p.  49,  §  6. 

(234)  Shooting  with  intent  to  wound,  under  Ohio  statute,  p.  49,  §  6. 

(235)  Assault  on  high  seas,  with  dangerous  weapon. 

(236)  Another  form  for  same. 

(237)  Same  in  a  foreign  port,  the  weapon  being  a  Spanish  knife. 

(238)  Second  count,  same  as  first,  charging  the  instrument  dif- 

ferently. 

(239)  Third  count.     Assault  with  intent  to  kill. 

(240)  Assault  and  false  imprisonment,  at  common  law. 

(241)  Assault  and  false  imprisonment,  with  the  obtaining  of  five 

dollars. 


BOOK  IV.] 


ANALYTICAL   TABLE. 


(242 
(243 
(244 
(245 
(246 
(247 
(248 
(249 
(250 

(251 
(252 
(253 
(254 
(255 
(256 
(257 
(259 
(260 
(261 
(262 

(263) 


Assault  with  intent  to  murder  at  common  law. 

Another  form  for  same. 

Assault  with  intent  to  drown. 

Assault  with  intent  to  murder,  under  the  New  York  Rev.  Stat. 

Second  count.     With  intent  to  maim. 
Assault  with  intent  to  commit  a  felony  generally. 
Felonious  assault  under  the  Massachusetts  statute. 
Assault  with  intent  to  murder  in  South  Carolina. 
Felonious  assault  with  intent  to  rob,  being  armed.     Rev.  Sts. 

of  Mass.  ch.  125,  §  14. 
Assault  with  intent  to  rob,  against  two. 
Another  form  for  same. 
Assault  with  intent  to  ravish. 
Same,  under  Rev.  Sts.  of  Mass.  ch.  125,  §  19. 
Assault  with  intent  to  rape,  under  Ohio  Stat.  p.  48,  §  4. 
Another  form  for  assault  with  intent  to  ravish. 
Same  against  two. 
Indecent  assault. 

Indecent  assault  with  intent  to  have  an  improper  connection. 
Indecent  assault  by  stripping. 
Assault  with  intent  to  rape.     Attempting  to  abuse  a  female 

under  ten  years  of  age,  under  Ohio  Stat.  p.  48,  §  4. 
Assault  with  intent  to  steal. 


BOOK  IV. 

OFFENCES   AGAINST  PROPERTY. 

CHAPTER  I. 

FORGERY,  COINING,  UTTERING,  ETC. 

(264)  General  frame  of  indictment  at  common  law. 

(265)  Forging,  at  common   law,  a  certificate  of  an  officer  of  the 

American  army, in  1777,  to  the  effect  that  he  had  received. 
certain  stores,  &c. 

(26Q)  Second  count.     Publishing  the  same. 

(267)  Forgery.  Altering  a  certificate  of  an  officer  of  the  Ameri- 
can arrny,  in  1778,  to  the  effect  that  he  had  received  for  the 
use  of  the  troops  at  Carlisle  certain  articles  of  clothing. 
Offence  laid  at  common  law,  the  intent  being  to  defraud 
the  United  States. 


yax 


ANALYTICAL   TABLE.  [BOOK  IV. 

(268)  Forgery.     Altering  and  defacing  a  certain  registry  and  rec- 

ord, &c.,  under  the  Pennsylvania  Act  of  1700. 

(269)  For  forging,  &c.,  a  bill  of  exchange,  an  acceptance  thereof, 

and  an  indorsement  thereon. 

(270)  Second  count,  for  uttering. 

(271)  Third  count,  for  forging  an  acceptance. 

(272)  Fourth  count,  same  stated  differently. 

(273)  Fifth  count,  for  forging  an  indorsement,  &c. 

(274)  Sixth  count,  for  publishing  a  forged  indorsement,  &c. 

(275)  For  forgery  at  common  law  in  antedating  a  mortgage  deed 

with  intent  to  take  place  of  a  prior  mortgage. 

(276)  At  common  law.     Against  a  member  of  a  dissolved  firm  for 

forging  the  name  of  the  firm  to  a  promissory  note. 

(277)  Forging  a  letter  of  attorney,  at  common  law. 

(278)  Forgery  of  bill  of  exchange.     First  count,  forging  the  bill. 

(279)  Second  count.     Uttering  the  same. 

(280)  Third  count.     Forging  an  acceptance  on  the  same. 

(281)  Fourth  count.     Offering,  &c.,  a  forged  acceptance. 

(282)  Sixth  count.     Offering,  &c.,  forged  indorsement. 

(283)  Forging  and  publishing  a  receipt  for  payment  of  money. 

(284)  Second  count  for  uttering. 

(285)  Forging  a  receipt,  under  the  North  Carolina  statute. 

(286)  Forging  2i  fieri  facias,  at  common  law. 

(287)  Second  count.     Uttering  same. 

(288)  Forgery  of  a  bond,  at  common  law. 

(289)  At  common  law,  by  separating  from  the  back  of  a  note  an 

indorsement  of  part  payment. 

(290)  Forgery  in  altering  a  peddler's  license,  at  common  law. 

(291)  Forgery  of  a  note  which  cannot  be  particularly  described  in 

consequence  of  its  being  destroyed. 

(292)  Forgery  of  a  note  whose  tenor  cannot  be  set  out  on  account 

of  its  being  in  defendant's  possession. 

(293)  Forgery  of  bond  when  forged  instrument  is  in  defendant's 

possession. 

(294)  Forgery  at  common  law,  in  passing  counterfeit  bank  notes. 

(295)  Forgery  of  the  note  of  a  foreign  bank,  as  a  misdemeanor  at 

common  law. 

(296)  Forging  a  bank  note,  and  uttering  the  same,  under  English 

statute. 

(297)  Second  count.     Putting  away  same. 

(298)  Third  count.     Forging  promissory  note. 

(299)  Fourth  count.     Putting  away  same. 

XX 


BOOK  IV.]  ANALYTICAL   TABLE. 

(300)  Fifth  count.     Same  as  first,  with  intent  to  defraud  J.  S. 

(301)  Sixth  count.     Putting  away  same. 

(302)  Seventh  count.     Same  as  second,    with  intent    to    de- 

fraud J.  S. 

(303)  Eighth  count.     Putting  away  same. 

(304)  Attempt  to  pass  counterfeit  bank  note,  under  Ohio  statute. 

(305)  Forging  a  certificate  granted  by  a  collector  of  the  customs. 

(306)  Causing  and  procuring  forgery,  &c. 

(307)  Altering  generally. 

(308)  Altering,  &c.,  averring  specially  the  alterations. 

(309)  Same  in  another  shape. 

(310)  Uttering  certificate  as  forged. 

(311)  Uttering  certificate  as  altered. 

(312)  Forging  a  treasury  note. 

(313)  Causing  and  procuring,  &c. 

(314)  Altering  same. 

(315)  Passing  note,  &c. 

(316)  Same  in  another  shape. 

(317)  Feloniously  altering  a  bank  note. 

(318)  Having  in  possession  forged  bank  notes  without  lawful  ex- 

cuse, knowing  the  same  to  be  forged. 

(319)  Uttering  and  passing  a  counterfeit  bank  bill,  under  §  4,  ch. 

96  of  Revised  Statutes  of  Vermont. 

(320)  Uttering  forged  order,  under  Ohio  statute. 

(321)  Another  form  for  same. 

(322)  Uttering  a  forged  note  purporting  to  be  issued  by  a  bank  in 

another  State,  under  the  Vermont  statute. 

(323)  Having  counterfeit  bank  note  in  possession,  under  Ohio  statute. 

(324)  Having  in  possession  counterfeit  plates,  under  Ohio  statute. 

(325)  Secretly   keeping    counterfeiting   instruments,    under   Ohio 

statute. 

(326)  Having   in   possession   counterfeit  bank  notes,  under  Ohio 

statute. 

(327)  Having  in   possession  forged  note  of  United  States  Bank, 

under  the  Vermont  statute. 

(328)  Forgery,  &c.,  in  New  York.     Having  in  possession  a  forged 

note  of  a  corporation. 
329)  Second  count.     Uttering  the  same. 

(330)  Forging   an   instrument  for  payment  of  money,  under    the 

New  York  statute. 

(331)  Second  count.     Uttering  the  same. 

xxi 


ANALYTICAL   TABLE.  [BOOK  IV. 

(332)  Having   in  possession  forged  notes,  &c.,  with  intent  to  de- 

fraud, under  the  New  York  statute. 

(333)  Forgery  of  a  note  of  a  bank  incorporated  in  Pennsylvania, 

under  the  Pennsylvania  statute. 

(334)  Second  count.     Passing  same. 

(335)  Forgery  of  the  note   of  a  bank  in  another  State,  under  the 

Virginia  statute. 

(336)  For  making,  forging,  and  counterfeiting,  &c.,  American  coin, 

under  act  of  Congress. 

(337)  Second  count.     Same,  averring  time  of  coining. 

(338)  Third  count.     Passing,  &c. 

(339)  Fourth  count.     Same  in  another  shape. 

(340)  Fifth  count.     Same,  specifying  party  to  be  defrauded. 

(341)  Counterfeiting  half  dollars,  under  act  of  Congress. 

(342)  Passing  counterfeit  half  dollars,  with  intent   to  defraud  an 

unknown  person,  under  act  of  Congress. 

(343)  Second  count.     Same  with  intent  to  defraud  R.  K. 

(344)  Having  coining  tools  in  possession,  at  common  law. 

(345)  Making,  forging,  and  counterfeiting,  &c.,  foreign  coin,  quarter 

dollar,  under  act  of  Congress. 

(346)  Second  count.     Procuring  forgery. 

(347)  Passing,  uttering,  and  publishing  counterfeit  coin  of  a  for- 

eign country,  under  act  of  Congress,  specifying  party  to 
be  defrauded. 

(348)  Debasing  the  coin  of  the  United  States,  by  an  officer  em- 

ployed at  the  mint,  under  act  of  Congress. 

(349)  Fraudulently   diminishing   the   coin  of  the   United    States, 

under  act  of  Congress. 

(350)  Uttering  a  counterfeit  half  guinea,  at  common  law. 

(351)  Passing  counterfeit  coin  similar  to  a  French  coin,  at  common 

law. 

(352)  Counterfeiting  United  States  coin,  under  the  Vermont  stat- 

ute. 

(353)  Having  in   possession    coining  instruments,  under  the  Rev. 

Sts.  of  Massachusetts,  ch.  127,  §  18. 

(354)  Having  in  possession  ten  counterfeit   pieces    of  coin,  with 

intent  to  pass  the  same,  under  Rev.  Sts.  of  Mass.  ch.  127, 
§15. 

(355)  Having  in  custody  less  than  ten  counterfeit  pieces  of  coin, 

under  Rev.  Sts.  of  Mass.  ch.  127,  §  16. 

(356)  Uttering  and   publishing  as  true  a  forged  promissory  note. 

Rev.  Sts.  of  Mass.  ch.  127,  §  2. 
xxii 


BOOK  IV.]  ANALYTICAL   TABLE. 

(357)  For  forging  a  promissory  note.     Rev.  Sts.  of  Mass.  eh.  127, 

§1. 

(358)  For  counterfeiting  a  bank  bill.     Rev.  Sts.  of  Mass.  eh.  127, 

§4. 

(359)  For  having  in   possession   at  the  same  time,  ten  or  more 

counterfeit  bank  bills,  with  intent  to  utter  and  pass  the 
same  as  true.     Rev.  Sts.  of  Mass.  eh.  127,  §  5. 

(360)  Passing  a  counterfeit  bank  bill.     Rev.  Sts.  of  Mass.  ch.  127, 

§6. 

(361)  Having  in  possession  a  counterfeit  bank  bill,  with  intent  to 

pass  the  same.     Rev.  Sts.  of  Mass.  ch.  127,  §  8. 

(362)  Making  a  tool  to  be  used  in  counterfeiting  bank  notes.     Rev. 

Sts.  of  Mass.  ch.  127,  §  9. 

(363)  Having   in    possession   a  tool    to  be  used  in  counterfeiting 

bank   notes,  with  intent  to  use  the    same.     Rev.  Sts.  of 
Mass.  ch.  127,  §  9. 

(364)  Counterfeiting  current  coin.      Rev.  Sts.  of  Mass.  ch.  127, 

§15. 

(365)  Uttering  and  passing  counterfeit  coin.     Rev.  Sts.  of  Mass. 

ch.  127,  §  16. 

(366)  Coining,  &c.,  under  the  North  Carolina  statute. 


CHAPTER   II. 

BURGLARY. 

(367)  General  frame  of  indictment  for  burglary  and   larceny,  at 

common  law. 

(368)  Burglary  and  larceny,  at  common  law.     Another  form. 

(369)  Second  count.     Receiving  stolen  goods. 

(370)  Burglary  at  common  law  with  no  larceny. 

(371)  Breaking  into  dwelling-house,  not  being  armed,  with  intent 

to  commit  larceny,  under  Massachusetts  statute. 

(372)  General  frame  of  indictment  in  New  York. 

(373)  Burglary,  by  breaking  out  of  a  house. 

(374)  Burglary  and  larceny  and  assault,  with  intent  to  murder. 

(375)  Burglary  with  violence. 

(376)  Burglary  and  rape. 

(377)  Burglary,  with  intent  to  ravish  ;  with  a  count  for  burglary 

with  violence,  under  St.  Wm.  IV.  and  1  Vict.  c.  86,  s.  2. 

(378)  Burglary  and  larceny,  at  common   law,  by  breaking  into  a 

parish  church. 

xxiii 


ANALYTICAL   TABLE.  [BOOK  IV. 

(379)  Burglary  and  larceny.     Breaking  and  entering  a  store  and 

stealing  goods,  under  Ohio  statute. 

(380)  Burglary  and  larceny.     Breaking  and  entering  a  meeting- 

house, and  stealing  a  communion  cup  and  chalice,  under 
Ohio  statute. 

(381)  Burglary.     Breaking  and  entering  a  storehouse  with  intent 

to  steal,  under  Ohio  statute. 

(382)  Burglary.    Breaking  and  entering  a  shop  with  intent  to  steal, 

under  Ohio  statute. 

(383)  Burglary.     Breaking  and  entering  a  dwelling-house  with  in- 

tent to  steal,  under  Ohio  statute, 

(384)  Breaking  and  entering  a  mansion-house  in  the  daytime,  and 

attempting  to  commit  personal  violence,  under  Ohio  stat- 
ute. 

(385)  Breaking  and  entering  a  mansion-house  in  the  night  season, 

and  committing  personal  violence,  under  Ohio  statute. 

(386)  Against  a  person  for  attempting  to  break  and  enter  a  dwell- 

ing-house at  night,  at  common  law. 

(387)  Breaking  a  storehouse  with  intent  to  enter  and  steal,  at  com- 

mon law. 

(388)  Being  found   by  night  armed,  with  intent  to  break  into   a 

dwelling-house  and  commit  a  felony  therein. 

CHAPTER   III. 

ARSON. 

(389)  General  frame  of  indictment  for  arson,  at  common  law. 

(390)  Burning  unfinished  dwelling-house,  under  Mass.  Rev.  Sts.  ch. 

12(),  §  5. 

(391)  Setting  fire   to  a  building,  whereby  a   dwelling-house  was 

burnt  in  the  night-time.     Mass.  Stat.  1852,  ch.  258,  §  3. 

(392)  Burning   a   dwelling-house   in   the   daytime.     Rev.    Sts.  of 
.     Mass.  ch.  12G,  §  6. 

(393)  Setting  fire  to  a  building  adjoining  a  dwelling-house  in  the 

daytime,  whereby  a  dwelling-house  was  burnt  in  the  day- 
time.    Rev.  Sts.  of  Mass.  ch.  12G,  §  2. 

(394)  Burning  a  stable  within  the  curtilage  of  a  dwelling-house. 

Rev.  Sts.  of  Mass.  ch.  126,  §  3. 

(395)  Burning  a  city  hall  in  the  night-time.     Rev.  Sts.  of  Mass. 

ch.  126,  §  3. 

(396)  Burning   a   meeting-house   in   the  daytime.      Rev.  Sts.    of 

Mass.  ch.  126,  §  4. 
xxiv 


BOOK  IV.]  ANALYTICAL   TABLE. 

(397)  Burning   a   vessel   lying   within,  the   body   of  the   county. 

Rev.  Sts.  of  Mass.  ch.  125,  §  5. 

(398)  Burning  a  dwelling-house  with  intent  to  injure  an  insurance 

company.     Rev.  Sts.  of  Mass.  ch.  126,  §  8. 

(399)  Setting  fire  to  stacks  of  hay.     Rev.  Sts.  of  Mass.  ch.  126, 

^  6. 

(400)  Turning  a  dwelling-house  in  the   night-time.     Mass.    Stat. 

1852,  ch.  259,  §  3. 

(401)  Burning  a  flouring  mill,  under  Ohio  statute. 

(402)  Burning  a  dwelling-house,  under  Ohio  statute. 

(403)  Burning  a  boat,  under  Ohio  statute. 

(404)  Attempt   to   commit  arson.     Setting  fire  to  a  store,  under 

Ohio  statute. 

(405)  Burning  a  stack  of  hay,  under  Ohio  statute. 

(406)  Burning  a  meeting-house,  under  the  Vermont  statute. 

(407)  Burning  one's  own  house,  with  intent  to  defraud  the  insur- 

ers. 

(408)  Burning  a  barrack  of  hay,  under  Pennsylvania  statute. 

(409)  Burning  stable,  under  same. 

CHAPTER  IV. 

ROBBERY. 

(410)  General  frame  of  indictment  at  common  law. 

(411)  Robbery  —  the    prisoner    being    armed   with   a   dangerous 

weapon.     Mass.  Rev.  Sts.  ch.  125,  §  15. 

(412)  Robbery  —  the    prisoner   being   armed    with    a    dangerous 

weapon  and  striking  and  wounding  the   person  robbed. 
Rev.  Sts.  of  Mass.  ch.  125,  §  13. 

(413)  Robbery,  not    being    armed.     Rev.  S;s.  of  Mass.   ch.  125, 

§  15. 

(414)  Attempting  to   extort  money  by  threatening   to  accuse  an- 

other of  a  crime.     Rev.  Sts.  of  Mass.  ch.  125,  §  17. 

CHAPTER  V. 

LARCENY. 

(415)  General  frame  of  indictment  at  common  law. 

(416)  Stealing  the  property  of  different  persons. 

(417)  Larceny  at  a  navy  yard  of  the  United  States. 

(418)  Larceny  on  the  high  seas. 

XXV 


ANALYTICAL  TABLE.  [BOOK  IV. 

(419)  Larceny  on  the  high  seas.     Another  form. 

(420)  Larceny  in  an  American  ship  at  the  Bahama  Islands, 

(421)  Second  count.     Receiving,  &c. 

(422)  Larceny.     Form  in  use  in  New  York. 

(423)  Same  in  Pennsylvania. 

(424)  Second  count.     Receiving  stolen  goods. 

(425)  Same  in  New  Jersey. 
(420)   Same  in  South  Carolina. 

(427)  Same  in  Michigan. 

(428)  Bank  note  in  North  Carolina. 

(429)  Bank  note  in  Pennsylvania. 

(430)  Bank  note  in  Connecticut. 

(431)  Bank  note  in  Tennessee. 

(431  A)   Stealing  bank  notes  of  an  unknown  bank. 

(432)  Larceny  in  a  dwelling-house  in  daytime.     Mass.  Rev.  Sts. 

ch.  126,  §14. 

(433)  Breaking  and  entering  a  vessel  in  the  night-time,  and  com- 

mitting a  larceny  therein,  under  Muss.  Rev.  Sts.  ch.  126, 
§11. 

(434)  Breaking  and  entering  a  shop  in  the  night,  and  committing 

a  larceny  therein,  under  Mass.  Rev.  Sts.  ch.  126,  §  11. 

(435)  Larceny  by  the  cashier  of  a  bank.    Mass.  Stat.  1846,  ch.  181, 

§1. 

(436)  Breaking  and  entering  a  stable  in  the  night-time,  and  com- 

mitting a  larceny  therein.     Mass.  Stat.  1851,  ch.  156,  §  1. 

(437)  Breaking  and  entering  a  shop  in  the  night-time,  adjoining  a 

dwelling-house,  with  intent  to  commit  the  crime  of  lar- 
ceny, and  actually  stealing  therein.  Mass.  Stat.  1839,  ch. 
31. 

(438)  Entering  a  dwelling-house  in  the  night-time  without  break- 

ing, some  persons  being  therein,  and  being  put  in  fear. 
Mass.  Rev.  Sts.  ch.  126,  §  12. 

(439)  Breaking  and  entering  a  dwelling-house  in  the  daytime,  the 

owner  being  therein,  and  being  put  in  fear.  Mass.  Rev. 
Sts.  ch.  126,  §  12. 

(440)  Breaking  and  entering  a  city  hall,  and  stealing  therein  in  the 

night-time.     Mass.  Rev.  Sts.  ch.  26,  §  14. 

(441)  Stealing  in  a  building  that  is  on  fire.     Mass.  Rev.  Sts.  ch. 

126. 

(442)  Larceny  from  the   person.      Rev.    Sts.  of    Mass.    ch.   126, 

§  16. 

(443)  Larceny  of  real  property.     Mass.  Stat.  1851,  ch.  151. 

xxvi 


BOOK  IV.]  ANALYTICAL   TABLE. 

(444)  Larceny  and  embezzlement  of  public  property,  on  the  stat- 

ute of  the  United  States  of  the  30th  April,  1790,  §  26. 

(445)  Against  an  assistant  postmaster,  for  stealing   money  which 

came  into  his  hands  as  assistant  postmaster,  on  the  Act  of 
3d  March,  1825,  §  21. 


CHAPTER  VI. 
RECEIVING  STOLEN  GOODS. 

(450)   General  frame  of  indictment. 

(452)  Against  receiver  of  stolen  goods.     Mass.  Rev.  Sts.  eh.  126, 

§20. 

(453)  Same  in  New  York. 

(454)  Same  in  Pennsylvania. 

(455)  Against  a  receiver  of  embezzled  property.     Mass.  Stat.  1853, 

ch.  184. 

(456)  Receiving  stolen  goods  from  some  unknown  person,  in  Penn- 

sylvania. 

(457)  Same  in  South  Carolina. 

(458)  Same  in  Tennessee. 

(459)  Soliciting  a  servant  to  steal,  and  receiving  the  stolen  goods. 

CHAPTER  VII. 

EMBEZZLEMENT. 

(460)  Against  officer  of  the  United  States  Mint,  for   embezzling 

money  intrusted  to  him. 

(461)  Against  same  person  for  same,  charging  him  with  being  a 

person  employed  at  the  Mint. 

(462)  Against  auctioneer  for  embezzlement,  under  the  Mass.  Rev. 

Sts.  ch.  126,  §  30. 

(463)  Second  count  larceny. 

(464)  General  form  of  indictment  in  New  York. 

(465)  Second  count  larceny. 

(466)  Against  the  president  and  cashier  of  a  bank  for  an  embezzle- 

ment.    Rev.  Sts.  of  Mass.  ch.  126,  §  17. 

(467)  Against  a  clerk  for  embezzlement.     Rev.  Sts.  of  Mass.  ch. 

126,  §  29. 

(468)  Against  a  carrier  for  embezzlement.     Rev.  Sts.  of  Mass.  ch. 

126,  §30. 

(469)  Embezzlement  by  clerk  or  servant,  in  England. 

xxvii 


ANALYTICAL   TABLE.  [BOOK  IV. 

CHAPTER  VIII. 

MALICIOUS  MISCHIEF. 

[For  several  forms  of  indictments  which  might  be  classed  under 
this  head,  see  213,  &c.] 

(470)  Maliciously  wounding  a  cow. 

(471)  Giving  cantharides  to  prosecutors. 

(472)  Tearing  up  a  promissory  note. 

(473)  Cutting  down  trees  the  property  of  another,  not  being  fruit, 

or  cultivated,  or  ornamental  trees,  under  Ohio  statute. 

(474)  Destroying  vegetables,  under  Ohio  statute. 

(475)  Killing  a  heifer,  under  Ohio  statute. 

(476)  Cutting  down  trees,  &c. 

(477)  Killing  a  steer,  at  common  law. 

(478)  Altering  the  mark  of  a   sheep,  under  the   North    Carolina 

statute. 

(479)  Second  count.     Defacing  mark. 

(480)  Entering   the   premises   of   another,    and   pulling   down    a 

fence. 

(481)  Destroying  two  lobster  cars,  under  the  Massachusetts  statute. 

(482)  Removing  a  landmark,  under  the  Pennsylvania  statute. 

(483)  Felling  timber  in   the  channel  of  a   particular  creek,  in    a 

particular  county,  under  the  North  Carolina  statute. 

(484)  Throwing  down  fence,  under  Ohio  statute. 

(485)  Breaking  into  house  and  frightening  a  pregnant  woman. 

(486)  Cutting  ropes  across  the  ferry. 

(487)  Breaking  glass  in  a  building.     Mass.  Rev.  Sts.  ch.  126,  §  42. 

(488)  Burning  a  record. 

CHAPTER  IX. 

FORCIBLE  ENTRY  AND  DETAINER. 

(489)  General  frame  of  indictment  at  common  law. 
(490        nother  form  of  same. 

(491)  Against  one,  &c.,  at  common  law,  with  no  averment  of  either 

leasehold  or  freehold  possession  in  the  prosecutor. 

(492)  Forcible   entry,  &c.,  into   a  freehold,  on    Stat.  5  Rich.  II. 

c.  8. 

(493)  Forcible  entry  into  a  leasehold,  on  Stat.  21  Jac.  L  c.  15. 

xxviii 


BOOK  IV.]  ANALYTICAL   TABLE. 

(494)  Forcible  detainer  on    Stat.  8  Hen.  VIII.  c.  9,  or  11  Jac.  I. 

0.  51. 

(495)  Forcible  entry.     Form  in  use  in  Philadelphia.     First  count, 

at  common  law. 

(496)  Second  count.     Entry  upon  freehold. 

(497)  Third  count.     Entry  upon  leasehold. 

(498)  Breaking  and   entering  a  close,  and  cutting   down   a   tree, 

under  the  Pennsylvania  act. 


CHAPTER  X. 

I.  CHEATS  AT  COMMON  LAW. 

(499)  Selling  by  false  weight  or  measure. 

(500)  Against  a  baker  for  selling  light  loaves  to  poor  persons  and 

obtaining  pay  for  them,  under  the   pretence    that   such 
loaves  were  of  full  weight. 

(501)  Cheating  at  common  law  by  false  cards. 

(502)  Second  count.     Cheating  at  common    law,  at   a  game 

of  dice  called  "  passage." 

(503)  Information.     Passing  a  sham  bank  note,  the  offence  being 

charged  as  a  false  token. 

(504)  Obtaining  goods  by  means  of  a  sham  bank  note,  as  a  misde- 

meanor at  common  law. 

(505)  Cheat  by  means  of  a  counterfeit  letter. 

II.  FALSE  PERSONATION  OF  BAIL- 

(506)  Under  11  Geo.  IV.  and  1  Wm.  IV.  c.  66,  s.  11. 

III.  SECRETING  GOODS,  ETC. 

(507)  Secreting,  &c.,  with  intent  to  defraud,  &c. 

(508)  Second   count.      Same,   with   intent    to   defraud   and 

prevent   such  property  from  being   made  liable  for 
payment  of  debts. 

(509)  Third  count.     Same,  not  specifying  property. 

(510)  Fourth  count.      Averring   intent  to    defraud    persons 

unknown. 

(511)  Fifth  count.     Same,  not  specifying  goods,  with  intent 

to  defraud  persons  unknown. 

(512)  Sixth  count.     Same,  with  intent   to  prevent  property 

from  being  levied  on. 

(513)  Another  form  on  the  same  statute.     First  count,  intent  to 

defraud,  to  prevent  property  being  made  liable,  &c. 

XX  ix 


ANALYTICAL   TABLE.  [BOOK  IV. 

(514)  Second  count.     Same,  with  intent  to    defraud   another 

person. 

(515)  Third  count.     Secreting,  assigning,  &c.,  with  intent  to 

defraud  two,  &c. 

(516)  Fourth  count.     Secreting,  &c.,  averring  creditors  to  be 

judgment  creditors. 

(517)  Fifth  count.     Same,  in  another  shape. 

(518)  Fraudulent  conveyances  under  statute  Eliz.  c.  5,  s.  3. 

IV.  FRAUDULENT  INSOLVENCY. 

(519)  General  form, 

(520)  Averring  collusion  with  another  person. 

(521)  Same,  but  averring  collusion  with  another  person. 

(522)  Same,  specifying  another  assignee. 

(523)  Fraudulent    insolvency   by    a    tax   collector.     First   count. 

Embezzling  creditor's  property. 

(524)  Second  count.     Applying  to  his  own  use  trust  money, 

&c. 

V.  VIOLATION  OF  FACTOR  LAW. 

(525)  Pledging  goods  consigned,  and   applying   the   proceeds   to 

defendant's  use,  under  the  Pennsylvania  statute. 

(526)  Second  count.     Selling  same,  and  applying  to   defend- 

ant's use  the  proceeds. 

(527)  Third  count.     Selling  same  for  negotiable  instrument. 

VI.  OBTAINING   GOODS  BY  FALSE  PRETENCES. 

(528)  General  frame  of  indictment. 

(529)  Form  used  in  Massachusetts. 

(530)  Same  in  New  York. 

(531)  Pretence  that  defendant  was  agent  of  a  lottery,  &c. 

(532)  Obtaining  money  by  personating  another. 

(533)  Pretence  that  defendant  was  M.  H.  who  had  cured  Mrs.  C 

at  the  Oxford  Infirmary,  whereby  he  induced  the  pros- 
ecutor to  buy  a  bottle  of  ointment,  &c.,  for  which  he  re- 
ceived a  sovereign,  giving  15s.  in  change. 

(534)  Against  a  member  of  a  benefit  club  or  society,  for  obtaining 

money  belonging  to  the  rest  of  the  members  under  false 
pretences. 

(535)  Another  form  for  same,  coupled  with  a  production   to   the 

society  of  a  false  certificate  of  burial. 

(536)  First  count.     Pretence  that  a  broken   bank    note  was 

good. 

XXX 


BOOK  IV.]  ANALYTICAL   TABLE. 

(537)  Pretence  that  a  flash  note  was  good. 

(538)  Pretence  that  a  worthless  check  or  order  was  good. 

(539)  Another  form  for  same. 

(540)  Obtaining  goods  by  check  on  a  bank  where  the  defendant 

had  no  effects. 

(541)  Pretence  that  defendant  was  the  agent  of  A.  B.,  and  as  such 

had  been  sent  by  A.  B.  to  C  D.  to  receive  certain  money 
due  from  the  latter  to  the  former. 
(541^)  Pretence  that  defendant  was  acting  as  broker   for  undis- 
closed principals. 

(542)  Pretending  to  be  clerk  of  a  steamboat,  and   authorized  to 

collect  money  for  the  boat. 

(543)  Pretence  made    to  a  tradesman    that    defendant   was    ser- 

vant of  a  customer,  and  was  sent  for  the  particular  goods 
obtained. 

(544)  Another  form  for  same. 

(544^)  Pretence  that  defendant  was  asked  by  a  person  living 
in  a  large  house  down  the  street  to  buy  carpet  of  prose- 
cutor. 

(545)  Pretence  that  the  defendant  was  entitled  to  grant  a  lease  of 

certain  freehold  property. 

(546)  Pretence  that  the  defendant  was   authorized   agent   of  the 

Executive  Committee  of  the  Exhibition  of  the  Works  of 
Industry  of  all  Nations,  and  that  he  had  power  to  allot 
space  to  private  individuals  for  the  exhibition  of  their 
merchandise. 

(547)  Pretence   that   prisoner  was   an   unmarried   man,  and  that 

having  been  engaged  to  the  prosecutrix,  and  the  engage- 
ment broken  off,  he  was  entitled  to  support  an  action  of 
breach  of  promise  against  her,  by  which  means  he  obtained 
money  from  her. 

(548)  Pretence  that  defendants  were  the  agents  of  P.  N.  who  was 

the  owner  of  certain  stock  and  land,  &c.,  the  latter  of 
which  was  in  fact  mortgaged. 

(549)  That  defendant  possessed  a  capital  of  eight  thousand  dollars, 

which  had  come  to  him  through  his  wife,  it  being  her 
estate,  and  that  a  part  of  it  had  already  come  into  his 
possession,  and  a  part  would  come  into  his  possession 
in  the  month  then  next  ensuing,  &c. 

(550)  Second  count.     That  defendant  had  a  capital  of  $8,000, 

which  came  through  his  wife. 

(551)  Third  count.     That  defendant  had  a  capital  of  $8,000. 

xxxi 


ANALYTICAL    TABLE.  [BOOK  IV. 

(552)  Pretence  that  defendant  was  well  off  and  free  from  debt,  &c. 

(553)  Second  count.     Setting  forth  the  pretence  more  fully. 

(554)  Pretence  that   certain  property  of  the   defendant  was   un- 

incumbered, and  that  he  himself  was  free  from  debts  and 
liabilities. 
(554^)  Pretence  that  certain  goods  were  unincumbered. 

(555)  Pretence  that  defendant  had  then  purchased  certain  prop- 

erty, which  it  was  necessary  he  should  immediately  pay 
for. 

(556)  Pretence  that  a  certain  draft   for  $7,700,  drawn  by  a  house 

in  Charleston  on  a  house  in  Boston,  which  the  defendant 
exhibited  to  the  prosecutor,  had  been  protested  for  non- 
payment ;  that  the  defendant  had  had  his  pocket  cut,  and 
his  pocket-book,  containing  $195,  stolen  from  it;  that  a 
draft  drawn  by  a  person  in  Philadelphia,  which  the  de- 
fendant showed  the  prosecutor,  had  been  received  by  the 
defendant  in  exchange  for  the  protested  draft,  and  that 
the  defendant  expected  to  receive  the  money  on  the  last 
mentioned  draft. 

(557)  Pretence  that  a  certain  watch  sold  by  defendant  to  prose- 

cutor was  gold. 

(558)  Obtaining   money  by   means   of  a   false   warranty   of    the 

weight  of  goods. 

(559)  Obtaining  money  by  a  false  warranty  of  goods. 

(560)  Falsely  pretending  that  goods  were  of  a  particular  quality. 

(561)  Pretence  that  a  certain  horse  to  be  sold,  &;c.,  was  sound,  and 

was  the  horse  called  "  Charley." 

(562)  Pretence  that  a  horse  and  phaeton  were  the  property  of  a 

lady  then  shortly  before  deceased,  and  that  the  horse  was 
kind,  &c. 

(563)  ■  Second  count.     Like  the   first,  except   that  the  offer- 

ing for  sale  was  alleged  to  have  been  by  T.  K.  the 
elder  only. 

(564)  Other  pretences  as  to  the  value  and  history  of  a  horse,  which 

the  prisoners  sold  to  the  prosecutor. 

(565)  Pretence,  that  one  J.  P.,  of  the  city  of  AVashington,  wanted 

to  buy  some  brandy,  &c. ;  that  said  J.  P.  kept  a  large 
hotel  at  Washington,  &c. ;  that  defendant  was  sent  by 
said  J.  P.  to  purchase  brandy  as  aforesaid,  and  that  de- 
fendant would  pay  cash  tlierefor,  if  prosecutor  would  sell 
him  the  same.     First  count. 

(566)  Second   count.     That  defendant  was  requested  by   one 
xxxii 


BOOK  IV.]  ANALYTICAL    TABLE. 

J.  p.,  who  kept  a  large  hotel  in  Washington  City,  to 
purchase  some  brandy  for  said  J.  P.,  and  that  if  pros- 
ecutor would  sell  defendant  two  half  pipes  of  brandy, 
defendant  would  pay  prosecutor  cash  for  the  same 
shortly  after  delivery. 

(567)  Third  count.  .  That  defendant  had  been  requested  by 

one  J.  P.  to  purchase  for  him  some  brandy,  that  he 
(the  said  J.  P.)  kept  a  large  hotel  in  Baltimore,  &c. 

(568)  Pretence    that    one   of    the    defendants    having   advanced 

money  to  the  other  on  a  deposit  of  certain  title  deeds 
had  himself  deposited  the  deeds  with  a  friend,  and  that 
he  received  a  sum  of  money  to  redeem  them  ;  with  counts 
for  conspiracy. 

(569)  For   pretending   to    an    attesting  justice    and  a   recruiting 

sergeant  that  defendant  was  not  an  apprentice,  and  there- 
by obtaining  money  to  enlist. 

(570)  For  obtaining  more  than  the  sum  due  for  carriage  of  a  par- 

cel by  producing  a  false  ticket. 

(571)  Pretence  that   defendant   had   no  note   protested   for  non- 

payment, that  he  was  solvent,  and  worth  from  nine  to  ten 
thousand  dollars. 

(572)  Obtaining  acceptances  on  drafts,  by  pretence    that    certain 

goods  had  been  purchased  by  defendant  and  were  about 
to  be  shipped  to  prosecutor. 

(573)  Obtaining   acceptances   by   the    pretence    that    defendants 

had  certain  goods  in  storage  subject  to  prosecutor's 
order. 

(574)  Receiving   goods   obtained   by   false    pretences,   under   the 

English  statute. 


CHAPTER  XL 

DESTROYING  A  VESSEL  AT  SEA,  ETC. 

(575)  Sinking  and  destroying  a  vessel,  the  parties  not  being  owners 

in  whole  or  in  part,  \mder  the  United  States  statute. 

(576)  Casting  away  a  vessel  with  intent  to  prejudice  the  owners, 

under  the  English  statute. 
I-  —  c  xxxiii 


BOOK  I. 

GENERAL   FORM   OF   INDICTMENT. 


CHAPTER   I. 

CAPTION. 
GENERAL    FORM    OF    CAPTION. 


(1)  State  OF,  &c.,&c.  {Stating  the  name  of  county.)  At  (a)  the 
general  quarter  sessions  of  the  peace  [stating  style  of  court),  (b) 
holden  at  Washington  {stating-  county  town,  or  wherever  the  court 
is  holden)  in  and  for  the  county  aforesaid,  (c)  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
forty,  {d)  before  A.  B.  and  C.  D.,  esquires,  and  others  their  asso- 
ciates, justices  of  the  said  state,  assigned  to  keejD  the  peace  of 
the  said  state,  and  also  to  hear  and  determine  divers  felonies, 
trespasses  and  other  misdemeanors,  in  the  said  county  com- 
mitted, by  the  oath  of  {naming  the  grand  jurors),  {e)  good  and 
lawful  men  (/)  of  the  county  aforesaid,  {g)  then  and  there  sworn 
and  charged  {h)  to  inquire  for  the  said  state,  and  for  the  body  of 
the  county  aforesaid,  it  is  presented  that,  &c.  {i) 

(a)  Tliis  is  equivalent  to  saying  that  the  jury  were  sworn  in  open  court. 
Weinzorpflin  v.  State,  7  Blackford,  186.     See  Wh.  C.  L.  §  219. 

(6)  The  style  should  properly  represent  the  court,  so  as  to  show  it  to  have 
jurisdiction,  this  being  the  chief  object  of  the  caption.  Dean  v.  State,  Mart.  & 
Yerg.  127  ;  State  v.  Lisle,  5  Halst.  348  ;  2  Hale,  165  ;  2  Hawk.  c.  25,  s.  116,  117, 
118,  119,  120  ;  Burn's  Just.  29th  ed.,  Indict,  ix. 

(c)  "  County  aforesaid  "  is  not  enough,  unless  there  be  express  reference  to 
the  county  in  the  margin.  2  Hale,  180  ;  3  P.  Wms.  439;  U.  S.  v.  Wood,  2 
Wheel.  C.  C.  336. 

(d)  Neither  the  term,  nor,  it  seems,  the  date  need  be  set  out.  State  v.  Had' 
dock,  2  Hawks,  462. 

VOL  I.  —  1.  1 


(1)  CAPTION. 

(e)  It  is  no  ground  for  arresting  judgment  after  conviction  on  an  indictment, 
that  it  appears  from  the  record  that  the  grand  jury,  who  found  (he  Ijill,  consisted 
only  of  fifteen  persons.  State  i'.  Davis.  2  Iredell,  153.  By  the  common  law,  a 
grand  jury  may  consist  of  any  number  between  twelve  and  twenty-three.  The 
North  Carolina  statute  upon  the  subject  of  a  grand  jury,  is  only  directory  to  the 
court,  and  does  not  declare  void  a  bill  or  presentment  found  by  a  grand  jury 
consisting  of  the  common  law  number.     State  u.  Davis,  2  Iredell,  153. 

But  under  a  statute  exacting  a  minimum  of  sixteen  jurors,  a  caption  averring 
a  finding  by  "  twelve  good  and  lawful  men  "  is  fatally  defective.  Fitzgerald  v. 
State,  4  Wisconsin,  395. 

It  is  now  settled  that  it  is  not  necessary  to  recite  the  names  of  the  grand 
jurors  ;  nor  is  a  variance,  if  such  an  averment  be  made,  fatal.     Wh.  C.  L.  228. 

(y)  The  adequacy  of  this  averment,  together  with  those  that  follow,  was  dis- 
cussed by  the  Supreme  Court  of  Indiana,  in  a  learned  opinion.  Beauchamp  v. 
State,  6  Blackford,  304.  "  This  general  representation  of  the  qualifications  of 
grand  jurors,"  it  was  said,  "  has  always  been  held  to  be  sufficient,  even  when 
the  record  comes  from  a  court  of  special  and  limited  jurisdiction ;  if  it  comes 
from  a  superior  court,  even  the  omission  of  these  words  is  not  fatal,  because 
all  men  shall  be  presumed  to  be  '  good  and  lawful '  until  the  contrary  appears. 
1  Chit.  C.  L.  333  ;  Bac.  Abr.  Indictment  i. ;  2  Hawk.  c.  25,  a.  17,  3.  It  is 
alleged  there  is  uncertainty  in  the  time  and  place  of  swearing  and  charging  the 
grand  jury.  The  caption  shows  that  at  the  May  term,  1841,  of  the  Vigo  Cir- 
cuit Court,  and  on  the  third  day  of  that  month,  the  jm'ors  (naming  them) 
appeared  in  court,  and  being  duly  sworn  and  charged,  &c.  The  defect  com- 
plained of  is  the  omission  of  the  words  '  then  and  there '  before  '  sworn  and 
charged.' 

"  The  case  of  The  People  v.  Guernsey,  3  Johns.  Cases,  2G5,  is  relied  on  to 
support  this  objection.  It  appears  to  us  that  it  has  a  contrary  bearing.  The 
omission  of  the  words  '  then  and  there,'  in  reference  to  the  swearing  and  charg- 
ing the  grand  jury,  was,  indeed,  held  to  be  a  fatal  defect  in  the  caption  of  the  in- 
dictment. But  the  decision  turned  on  the  fact,  that  the  record  was  certified  fi-om 
a  court  of  inferior  jurisdiction,  and  it  admitted  that  the  law  is  otherwise  when  the 
indictment  is  from  a  superior  court.  Our  Circuit  Courts  are  vested  with  public 
and  very  ample  jurisdiction,  and  are  not  in  contemplation  of  law  inferior  courts. 
That  Avrits  of  error  lie  to  them  from  the  Supreme  Court,  does  not  give  them  that 
character.  AVrits  of  error  run  to  the  English  Common  Pleas  from  the  King's 
Bench,  and  to  both  from  the  Exchequer  Chamber ;  but  these  tribunals  have 
always  been  ranked  among  the  superior  courts,  the  highest  indeed  in  the  king- 
dom. The  principal  object  of  the  caption  is  to  show  the  jurisdiction  of  the  court 
in  wliich  the  indictment  was  found.  More  certainty  therefore  is  requisite,  when 
it  is  brought  from  a  court  of  special  jurisdiction,  than  when  it  comes  from  a 
superior  court.  In  the  latter  case  the  omission  of  the  words  '  then  and  there,* 
in  respect  to  the  swearing  and  charging  the  grand  jury,  is  not  fatal ;  and  it  may 
be  well  doubted  whether  it  is  in  any  case.  1  Chit.  C.  L.  334  ;  2  Hawk.  c.  25,  s. 
126  ;  Bac.  Abr.  Indictment  i. ;  Arch.  C.  P.  24." 

As  to  the  strictness  requisite  in  drawing  the  caption,  great  variety  of  senti- 

2 


GENERAL    FORM.  (1) 

ment  exists.  In  North  Carolina,  the  courts  have  gone  so  far  as  to  pronounce 
no  necessity  to  exist  for  a  caption  at  all,  except  where  the  coixrt  acts  under  a 
special  commission.  State  v.  Brickell,  1  Hawks,  354 ;  State  v.  Haddock,  2 
Hawks,  462;  see  1  Saunders  250,  d.  n.  i.  Where  it  is  wholly  omitted  in  the 
court  below,  it  may  be  supplied  on  error  by  the  minute  of  the  clerk  on  the  bill 
at  the  time  of  presentment,  and  the  general  record  of  the  term.  State  v.  Gil- 
bert, 13  Vt.  647;  State  v.  Murphy,  9  Port.  486;  State  v.  Smith,  2  Harringt. 
532;  Kirkpatriek  v.  State,  6  Miss.  471 ;  State  v.  Thompson,  Wright's  R.  617  ; 
State  V.  Rose,  1  Alabama,  29.  In  fact,  in  most  of  the  States  it  is  now  rarely 
tacked  on,  except  in  error.  In  Pennsylvania,  Pa.  v.  Bell,  Add.  156  ;  in  South 
Carolina,  State  v.  Williams,  2  M'Cord,  301  ;  Vandyke  v.  Dail,  1  Bail.  65  ;  in 
Indiana,  Moody  v.  State,  7  Blackford,  424 ;  and  in  New  Jersey,  State  v.  Jones,  4 
Halst.  457,  it  seems  it  can  be  amended  when  in  the  court  below,  by  reference  to 
the  records  of  the  term,  or  when  in  error,  by  proper  evidence  of  the  facts.  State 
V.  N^orton,  3  Zabr.  33.     See  Wh.  C.  L.  §§  219-232. 

The  caption  is  no  part  of  the  indictment.     Wh.  C.  L.  §  219. 

A  caption,  "  Commonwealth  of  Massachusetts,  Essex,  to  wit :  At  the  Court 
of  Common  Pleas,  begun  and  holden  at  Salem,  within  and  for  the  County  of 
Essex,"  &c.,  sufficiently  shows  that  the  indictment  was  found  in  Massachusetts. 
Com.  V.  Fisher,  7  Gray  (Mass.),  492.  See  also  Com.  v.  Edwards,  4  Gray 
(Mass.),  1 ;  State  v.  Conly,  39  Maine  (4  Heath),  78. 

(g)  The  jury  must  appear  to  be  of  the  "  county  aforesaid  "  (Tipton  v.  State, 
Peck's  R.  8 ;  Cornell  v.  State,  Mart.  &  Yerg.  14  7 ;  Wh.  C.  L.  §§  219-32)  ;  though 
the  allegation,  "  empanelled  and  sworn  in  and  for  the  county  of  Wilkinson  and 
State  of  Mississippi,"  may  supply  its  place.  Woodsides  v.  State,  2  How.  Miss. 
R.  655. 

In  New  Jersey,  where  the  caption  states  the  finding  to  be  on  the  oath  a7id 
affirmations  of  the  grand  jury,  it  must  appear  that  the  affirming  jurors  were 
persons  entitled  by  law  to  take  affirmations  instead  of  oaths.  State  v.  Harris,  2 
Halst.  457.  This  particularity  does  not  seem  elsewhere  to  have  been  held  neces- 
sary; see  Archbold's  C.  P.  5th  Am.  ed.  34;  Com.  v  Brady,  7  Gray  (Mass.),  320. 

(Ji)  The  omission  of  the  allegation  "  then  and  there  sworn  and  charged,"  in 
New  York,  has  been  held  fatal  (People  v.  Guernsey,  3  Johns.  265)  ;  though  in 
Mississippi,  "then  and  there"  are  not  considered  indispensable  (Woodsides  v. 
State,  2  How.  Miss.  R.  655)  ;  and  they  do  not  appear  in  the  precedent  given  by 
Mr.  Archbold.  Archbold's  C.  P.  5th  Am.  ed.  34.  As  appears  in  note  (/),  the 
omission  in  Indiana  is  considered  no  error. 

(i)  See  as  to  this  form  generally,  Archbold's  C  P.  5th  Am.  ed.  33;  2  Hale, 
166;   R.  V.  Fearnly,  1  Leach,  425;   Wh.  C  L.  §§  219-232. 


(I)  .  CAPTION. 


FORMS   OF    CAPTIONS. 

Circuit  Court  of  the  United  States  of  America,  for  the  Southern  Dktricl  of  New 
York  in  the  Second  Circuit. 

At  a  Stated  Term  of  the  Circuit  Court  of  the  United  States  of  Amer- 
ica for  the  Southern  District  of  New  York,  in  the  Second  Circuit,  begun 
and  held  at  the  City  of  New  York,  within  and  for  the  circuit  and  district 
aforesaid,  on  the  of  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and 

(Also)  at  a  Special  Term,  &c. 

At  an  additional  sessions  of  the  Circuit  Court  of  the  United  States  of 
America  for  the  Southern  District  of  New  York,  in  the  Second  Circuit, 
begun  and  held  at  the  City  of  New  York,  within  and  for  the  circuit  and 
district  aforesaid,  on  the  of  in  the  year  of  our  Lord  one  thou- 

sand eight  hundred  and 

At  a  Stated  Term  of  the  Circuit  Court  of  the  United  States  of  Amer- 
ica for  the  Southern  District  of  New  York,  in  the  Second  Circuit,  begun 
and  held  at  the  City  of  New  York,  within  and  for  the  circuit  and  district 
aforesaid,  on  the  day  of  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  and  continued  by  adjournment  (or  adjourn- 

ments) to  the  day  of  in  the  year  last  aforesaid. 


C 
-^^ 


fen 


District  Court  of  the  United  Slates  of  America  for  the  Southern  District  of  New 

York. 

At  a  Stated  Term  of  the  District  Court  of  the  United  States  of  Amer- 
ica for  the  Southern  District  of  New  York,  begun  and  held  at  the  City 
of  New  Y'ork,  within  and  for  the  district  aforesaid,  on  the  first  Tuesday 
of  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

At  a  Special  Term,  &c. 

\  At  a  Stated  Term  of  the  District  Court  of  the  United  States  of  Amer- 
ica for  the  Southern  District  of  New  York,  begun  and  held  at  the  City 
of  New  York,  within  and  for  the  district  aforesaid,  on  the  first  Tuesday 
of  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

and  continued  by  adjournment  (or  adjournments)   to  the  day  of 

in  the  year  last  aforesaid. 

Slate  of  New  Jersey,  Sussex  County,  ss. 

Be  it  remembered.  That  at  a  Court  of  Oyer  and  Terminer  and  General  Gaol 
Delivery,  holden  at  Newton,  in  and  for  said  County  of  Sussex,  on  the  fourth 
Tuesday  in  May,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
twenty-seven,  before  the  Honorable  Gabi-iel  H.  Ford,  Esq.,  one  of  the  justices 
of  the  Supreme  Court  of  Judicature  of  the  State  of  New  Jersey,  and  John 
Gustm,  Joseph  Y.  Miller,  Walter  L.  Shee,  Aaron  Hazen,  and  others,  their  fel- 
lows, judges  of  the  Inferior  Court  of  Common  Pleas  in  and  for  the  said  county, 
according  to  the  form  of  the  statute  in  such  cases  made  and  provided,  by  the 
4 


GENERAL  FORM.  (1) 

oaths  of  Elijah  Emitt,  Absalom  Dunninp;,  John  Layton,  Nathaniel  Vanauken, 
Isaac  Bedell,  Philip  Smith,  Philip  Wyker,  Thomas  A.  Dildine,  Tliomas  B.  Egbert, 
Joseph  Greer,  William  D.  Johnson,  Abraham  Dunning,  Andrew  Wilson,  David 
Cunipton,  Lewis  Shuman,  Nicholas  J.  Cox,  John  Lennington,  Zenas  Hurd,  and 
the  solemn  affirmation  of  William  Green,  who  alleges  himself  to  be  conscien- 
tiously scrupulous  of  taking  an  oath,  good  and  lawful  men  of  the  said  county, 
sworn,  affirmed  and  charged  to  inquire  for  the  state,  in  and  for  the  said  body  of 
the  said  County  of  Sussex,  it  is  presented  in  manner  and  form  following,  that  is 
to  say  :  Sussex  County,  ss.  The  jurors  of  the  State  of  New  Jersey,  for  the  body 
of  the  County  of  Sussex,  upon  their  oaths  and  affirmation,  William  Green,  one  of 
the  said  jurors,  being  the  only  person  who  affirmed,  on  the  said  jury,  alleging 
himself  to  be  conscientiously  scrupulous  of  taking  an  oath,  present  that  Zacha- 
riah  Price,  late  of  the  township  of  Vernon,  in  the  County  of  Sussex  aforesaid,  not 
having  the  fear  of  God  before  his  eyes,  but  being  moved  and  seduced  by  the 
instigation  of  the  devil,  on  the  twenty-fifth  day  of  March,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  twenty-seven,  with  force  and  arms,  &c  , 
at  the  township  aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdiction 
of  this  court,  one  barn  of  the  property  of  one  Nicholas  Ryerson,  not  parcel  of 
the  dwelling-house  of  the  said  Nicholas  Ryerson  there  situate,  wilfully  and 
maliciously  did  burn  and  caused  to  be  burned,  to  the  great  damage  of  the  said 
Nicholas  Ryerson,  to  the  evil  example  of  all  others  in  the  like  case  offending, 
contrary  to  the  form  of  the  statute  in  such  case  made  and  provided,  against  the 
peace  of  this  State,  the  government  and  dignity  of  the  same.  And  afterwards, 
that  is  to  say,  at  the  same  Court  of  Oyer  and  Terminer  and  General  Gaol 
Delivery,  holden  at  Newton  aforesaid,  in  the  county  aforesaid,  on  Monday  the 
twenty-eighth  day  of  May,  in  the  year  last  aforesaid,  before  the  said  Honorable 
Gabriel  H.  Ford,  Esq.,  justice  of  the  Supreme  Court  of  Judicature,  and  John 
Gustin,  Joseph  P.  Miller,  Walter  L.  Shee,  Aaron  Hazen,  and  others  their  fel- 
lows, judges  of  the  Inferior  Court  of  Common  Pleas  in  and  for  the  said  county, 
Cometh  the  said  Zachariah  Price,  in  his  proper  person  according  to  the  condi- 
tion of  the  recognizance  by  himself,  and  his  pledges  in  that  behalf  heretofore 
made  and  now  here,  touching  the  premises  in  the  said  indictment  above  speci- 
fied and  charged  upon  him,  being  asked  in  what  manner  he  will  acquit  himself 
thereof,  he  says  he  is  not  guilty  thereof,  and  of  this  he  puts  himself  upon  the 
county;  and  the  said  Alpheus  Gustin,  Esq.,  who  prosecutes  for  the  State  in  this 
behalf,  does  likewise  the  same  ;  wherefore  let  a  jury  thereupon  come,  to  wit,  on 
Monday  the  twenty-eighth  day  of  May,  in  the  year  of  our  Lord  eighteen  hun- 
dred and  twenty-seven,  and  as  yet  of  the  said  term  of  May,  before  the  said  the 
Honorable  Gabriel  H.  Ford,  Esq.,  one  of  the  justices  of  the  Supreme  Court  of 
Judicature,  and  John  Gustin,  Joseph  Y.  Miller,  Walter  L.  Shee  and  Aaron 
Hazen,  Esqrs.,  and  others  their  fellows,  judges  of  the  Inferior  Court  of  Common 
Pleas  in  and  for  the  said  county,  of  good  and  lawful  men  of  the  County  of  Sus- 
sex aforesaid,  by  whom  the  truth  of  the  matter  may  be  the  better  known,  and 
who  are  not  of  kin  to  the  said  Zachariah  Price,  to  recognize  upon  their  oaths, 
whether  the  said  Zachariah  Price  be  guilty  of  the  misdemeanor  in  the  indict- 
ment aforesaid  above  specified,  or  not  guilty,  because  as  well  the  said  Alpheus 

5 


(1)  CAPTION. 

Gustin,  Esq.,  who  prosecutes  for  the  State  in  this  behalf,  as  the  said  Zachariah 
Price,  have  put  themselves  upon  the  said  jury,  and  the  jurors  of  the  said  jury, 
by  Benjamin  Ilaniilton,  Esq.,  high  sheriif  of  the  said  County  of  Sussex,  for  this 
purpose  empanelled  and  returned,  agreeably  to  the  statute  in  such  case  made 
and  provided,  to  wit,  John  Cummins,  Matthew  Ayres,  Lewis  Havens,  Sylveniis 
Adams,  William  Milcham,  Jacob  Miller,  Nicholas  Ackerson.  Gabriel  Post,  Lewis 
Peters,  Joseph  Predmon,  Lewis  Dennis  and  Samuel  IL  Ilibler,  who  being 
elected,  tried  and  sworn  and  affirmed,  the  said  Lewis  Dennis,  one  of  the  said, 
jurors,  being  the  only  person  who  was  affirmed  on  the  said  jury,  alleging  him- 
self to  be  conscientiously  scrupulous  of  taking  an  oath  to  speak  the  truth  of  and 
concerning  the  premises,  upon  their  oaths  and  affirmation,  say  that  the  said 
Zachariah  Price  is  guilty  of  the  misdemeanor  aforesaid  on  him  above  charged 
in  the  form  aforesaid,  and  as  by  the  indictment  aforesaid  is  above  supposed 
against  him  ;  and  upon  this  it  is  forthwith  demanded  of  the  said  Zachariah 
Price  if  he  hath  or  knoweth  of  anything  to  say  wherefore  the  said  justice  and 
judges,  and  their  fellows  as  aforesaid  here,  ought  not  upon  the  premises  and 
verdict  aforesaid,  to  proceed  to  judgment  against  him,  who  nothing  further  saith, 
unless  as  he  before  had  said  ;  whereupon  all  and  singular  the  premises  being 
seen,  and  by  the  said  justice  and  judges  and  their  fellows  as  aforesaid,  here 
fully  understood,  it  is  considered  by  the  court  here  that  the  said  Zachariah 
Price  be  confined  and  imprisoned  at  hard  labor  in  the  state's  prison  for  the  term 
of  ten  years. 

The  caption  to  the  panel  of  the  grand  jury  was  as  follows  :  — 
List  of  the  names  of  persons  summoned  to  attend  at  the  Court  of  Oyer  and 
Terminer  and  General  Goal  Delivery,  to  be  holden  at  Newton,  in  and  for  the 
County  of  Sussex  in  the  State  of  New  Jersey,  in  the  term  of  May,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  twenty-seven,  pursuant  to  the 
statute  in  such  case  made  and  provided,  by  me,  viz.  A.  B.,  C.  D.,  &c.,  naming 
the  jurors. 

Subscribed.     B.  H.,  Sheriff.  —  (State  v.  Price,  6  Halst.  204,  205,  206.) 

City  and  Count y  of  New  Yo7-k,  as. 

Be  it  rememlx'red,  That  at  a  Court  of  General  Sessions  of  the  Peace,  holden 
at  the  Halls  of  Justice  of  the  City  of  New  York,  in  and  for  the  City  and  County 
of  New  York,  on  the  first  Monday  of  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  forty-  before  Esquire  of  the  said  City  of 

New  York,  and  two  of  the  aldermen  of  the  said  city,  judges  of  the  said 

court,  assigned  to  keep  the  peace  of  the  said  City  and  County  of  New  York, 
and  to  inquire,  by  the  oaths  of  good  and  lawful  men  of  the  said  county,  of  all 
crimes  and  misdemeanors  committed  or  triable  in  the  said  county,  and  to  hear, 
determine,  and  punish  according  to  law,  all  crimes  and  misdemeanors  in  the 
said  City  and  County,  done  and  committed,  not  punishable  with  death. 
By  the  oath  of  foreman  (here  setting  forth  grand  jurors). 

It  was  presented  as  follows,  that  is  to  say,  City  and  County  of  New  York,  ss  : 
The  jurors  of  the  people  of  the  State  of  New  York,  in  and  for  the  body  of  the 
City  and  County  of  New  York,  upon  their  oath  present  that,  &c. 

6 


GENERAL  FOEM.  (1) 

State  of  Vermont,  Windsor  County,  ss. 

Be  it  remembered,  That  at  the  county  court  begun  and  holden  at  Woodstock, 
rvithin  and  for  the  County  of  Windsor,  on  the  first  Tuesday  of  November,  in 
:he  year  of  our  Lord  one  thousand  eight  hundred  and  forty-five :  the  grand 
jurors  within  and  for  the  body  of  the  County  of  Windsor  aforesaid,  now  here  in 
court  duly  empanelled  and  sworn,  upon  their  oath  present  that,  &c.  —  (See  State 
1'.  Nixon,  18  Vt.  70;  State  v.  Hunger,  15  Vt.  290.) 


(2)      GENERAL   FRAME   OF   INDICTMENT. —  NAME   OP   DEFENDANT. 


CHAPTER   II. 

GENERAL  FRAME   OF  INDICTMENT   AT   COMMON  LAW. 

(2.)   Skeleton  of  indictment  generally. 

The  jurors  for,  &c.,  (a)  inquiring  for,  &c.,  {b)  upon  their 
oath  (c)  do  present  that  A.  B.  {d)  late  of  the  said  county,  yeo- 
man, [e]  on  the  (/)  with  force  and  arms,  (§•)  at  afore- 
said, in  the  county  aforesaid,  (A)  and  within  the  jurisdiction  of 
the  said  court,  in  and  upon,  &c.,  one  E.  F.,  &c.,  [i)  with  intent, 
&c.,  [j)  against  the  form  of  the  statute  [or  statutes)  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  {of  the 
sovereign  authority),  {k) 

2d  Count.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, {k^)  do  further  present  that  the  said  A.  B.  aforesaid,  to  wit, 
on  the  day  and  year  aforesaid,  at  in  the  county  and  within 

the  jurisdiction  aforesaid,  did,  &c.  (/) 

( Conclude  as  in  first  count. ) 

(a)  The  jurors  "of"  instead  of  "for,"  is  not  bad  on  arrest  of  judgment.  R. 
V.  Turner,  2  M.  &  Rob.  214,  Parke,  J. ;  see  1  Chit.  C.  L.  327. 

(b)  At  Common  Law  the  jurors  must  appear  to  be  of  the  county.  White- 
head V.  R.,  14  Law  J.  (M.  C.)  165 ;  see  postea,  3,  4,  5,  et  seq.,  for  the  forms  and 
authorities  in  the  several  States. 

(c)  Where  the  jurors  entertain  conscientious  objections  to  taking  an  oath,  the 
proper  course  is  to  insert  "oath  and  affirmation"  (Dickinson's  Q.  S.  200;  Key's 
case,  9  C.  &  P.  78)  ;  and  this  is  always  the  case  in  Pennsylvania,  though  in  the 
remaining  States  the  practice  has  been  relaxed,  and  the  phrase  "oath"  seems 
adopted  as  a  settled  form.  In  Massachusetts,  it  is  enough  to  state  simply  "  oath 
and  affirmation,"  without  giving  reasons  why  any  of  the  jurors  were  affirmed 
instead  of  being  sworn.     Com.  v.  Brady,  7  Gray  (Mass.),  320. 

As  to  New  Jersey  practice,  see  ante,  note  (g). 

(d)  In  this  note  will  be  considered  first,  in  what  way  the  defendant's  name  is 
to  be  set  out ;  and  secondly,  in  what  cases  several  defendants  may  be  joined. 

1st.  In  what  way  the  defendant's  name  is  to  he  set  out. 

See  this  subject  considered  in  full  in  Wh.  Cr.  Law,  under  the  following 
heads : — 

1st.  When  defendant  is  a  corporation,  §  233. 

8 


CORPORATIONS.  —  MIDDLE   NAMES.  (2) 

2d.    How  often  the  defendant's  name  must  be  repeated,  and  how  far  a 
subsequent  full  name  cures  a  former  omission,  §  234. 

3d.    What  is  a  misnomer,  §  236. 

4th.  Alias  dictus,  §  237. 

5th.  Defendant's  middle  names,  §  238. 

Gth.  Abbreviations  and  initials,  §  239. 

7th.  Where  defendant's  name  is  unknown,  §  242. 

8th.  Addition  and  mystery,  §  243. 

9th.  Junior  and  senior,  §  249. 
10th.  Description  of  parties  injured  and  third  parties,  §  250. 
11th.  General  summary  of  practice,  §  259. 
In  addition  to  the  above  references,  the  following  may  be  of  use  :  — 
12th.  How  feme  coverts  are  to  be  indicted,  §  G7. 

(a)  Indictments  against  the  wife  alone,  §  67. 

(b)  Indictment  against  the  wife  jointly  with  her  husband,  §  69. 

(c)  Misnomer  in  indictment,  §  70. 

The  Christian  and  surname  of  the  defendant,  if  known,  should  be  stated  with 
correctness  ;  except  in  an  indictment  against  the  inhabitants  of  a  county  or  par- 
ish, who  may  be  so  described  without  naming  any  of  them.  Hawk.  b.  2,  c.  25, 
s.  68  ;  Archbold's  C.  P.  25  ;  Wh.  C.  L.  §§  234-259. 

(Corporations.)  InTennsylvania,  under  an  act  directing  the  "  President,  man- 
agers and  company  "  of  a  road  to  remove  a  gate,  it  was  held  that  an  indictment 
of  those  officers  individually  for  a  violation  of  the  act  was  bad  ;  though  the  court 
declined  saying  whether  they  would  have  sustained  an  indictment  charging  the 
defendants  as  a  corporation.  Com.  v.  Demuth,  12  S.  &  R..  289.  But  the  weight 
of  authority  elsewhere  is  that  the  members  of  a  corporation  when  indicted  for  a 
corporation  oiTence,  must  be  charged  individually.  State  v.  Great  Works,  20 
Maine,  41;  Com.  v.  Swift-Run  Gap,  2  Va.  Cases,  362.     See  W^.  C.  L.  §  233. 

(Unknown.)  If  the  name  of  a  prisoner  is  unknown,  and  he  refuses  to  dis- 
close it,  an  indictment  may  be  sustained  against  him  as  "  a  person  whose  name 
is  to  the  jurors  unknown,  but  who  is  personally  brought  before  the  said  jurors 
by  ,  the  keeper  of  the  prison  of  ."    R.  v.  ,  R.  &  R.  489. 

An  averment  that  the  defendant  is  unknown  to  the  grand  jury  is  good,  though 
the  grand  jury,  with  reasonable  diligence,  might  have  ascertained  the  name. 
Com.  V.  Stoddart,  9  Allen  (Mass.),  280.     See  post,  n.  (i). 

(Alias.)  A  man  cannot  be  indicted  with  an  alias  dictus  of  the  Christian  name, 
as  "  John  otherwise  Robert"  though  to  an  alias  of  the  surname  there  is  no  ob- 
jection (1  Ld.  Raym.  560),  surnames  being  originally  acquired  by  assumption. 
See  cases  collected,  5  M.  &  W.  447  ;  see  also,  per  Lord  Stowell,  Wakefield  v. 
Wakefield,  1  Hagg.  Cons.  R.  400 ;  Barlow  v.  Bateman,  3  P.  Wms.  64.  An  in- 
dictment was  quashed  before  plea,  because  an  addition  was  placed,  not  after  the 
first  name,  but  after  the  alias  dictus  (R.  v.  Semple,  1  Leach,  420)  ;  but  this  de- 
fect is  cured  by  plea.     R.  v.  Hannam,  lb.  n. ;  see  Cro.  Jac.  482,  610. 

(Middle  Names.)  The  older  cases  tend  to  show  that  if  a  defendant  has  more 
than  one  Christian  name  given  him  in  baptism,  as  John  Thomas,  they  are  con' 
eidered  in  law  as  forming  one  Christian  name,  and  must  be  set  out  correctly  in 

9 


(2)  WHEN    SEVERAL   DEPENDANTS   MAY    BE   JOINED. 

their  order  (Com.  v.  Perkins,  1  Pick.  388;  Jones  v.  Macquillon,  5  T.  R.  195; 
3  East,  111  ;  Willes,  554;  Evans  v.  King,  Pouget  v.  Toaikins,  1  Phill.  R.  499; 
Stanhope  v.  Baldwin,  1  Addams'  R.  93 :  see  1  M.  &  Gr.  783,  n.)  ;  though  in  sev- 
eral States  it  is  held  that  a  middle  name  is  surplusage,  and  its  omission  to  be  dis- 
regarded. Roosevelt  v.  Gardiner,  2  Cow.  463  ;  People  v.  Cook,  14  Barbour,  259; 
State  V.  Williams,  20  Iowa,  98  ;  State  v.  Manning,  14  Texas,  402  ;  Price  v.  State, 
19  Ohio,  423;  State  v.  Hughes,  1  Swan  (Tenn.),  266;  People  v.  Lockwood,  6 
Cal.  205.  If  the  middle  name  be  averred,  however,  the  weight  of  authority  is 
that  it  must  be  proved  as  laid.  lb.  Price  v.  State,  19  Ohio,  423.  Contra  — 
People  V.  Lockwood,  6  Cal.  205. 

The  proper  name  of  a  bastard  is  that  he  has  gained  by  reputation,  and  not 
his  mother's  name,  unless  so  gained.     R.  v.  Clark,  R.  &  R.  358.     Post,  n.  (i). 

The  defendant's  name  was  given  in  the  first  count  as  John  Hagarman,  and 
was  so  stated  in  the  first  count.  The  second  count  described  him  as  "  the  said 
John."  This  was  held  good,  though  the  complainant's  name  was  also  John. 
Com.  V.  Hagarman,  10  Allen  (Mass.),  401. 

2d.  In  what  cases  several  defendants  may  he  joined. 

See  this  subject  treated  in  Wh.  Cr.  Law  under  the  following  heads :  — 
Joinder  of  defendants. 

1st.  Who  may  be  joined,  §  429. 

2d.    Where  a  particular  number  of  defendants  is  necessary,  as  in  riot  or 

conspiracy,  §  431. 
3d.    How  misjoinder  may  be  excepted  to,  §  432. 
4th.  Severance  on  trial,  ^  433. 
5th.  Verdict  and  judgment,  §  434. 

Where  the  felony  is  such  as  several  may  join  in,  e.  g.  house-breaking,  larceny, 
&c.,  and  it  is  believed  that  several  have  joined  in  committing  it,  in  several  de- 
grees, e.  g.  as  principal  in  the  first  or  second  degree,  or  as  accessories  before  or 
after  the  fact,  they  may  all  be  indicted  jointly  (2  Hale,  173;  Kane  v.  People,  8 
Wend.  203;  Com.  v.  Elwell,  2  Met.  190;  Com.  v.  Gillespie,  7  S.  &  R.  469; 
Reg.  V.  Putham,  9  C.  &  P.  280 ;  State  v.  Gay,  10  Mis.  540  ;  U.  S.  v.  O'Callahan, 
6  McLean,  596)  ;  and  the  like  in  misdemeanors,  where  all  are  principals,  e.  g. 
extortion,  battery,  &c.;  keeping  a  gaming-house,  &c.  (2  Burr.  984);  adultery 
(Com.  V.  Elwell,  2  Met.  190)  ;  and  the  same  rule  bears  though  the  several  parties 
may  have  acted  separately,  if  the  grievance,  e.  g.  the  nuisance,  is  the  result  of 
their  acts  jointly,  when  they  may  be  joined  in  an  indictment  stating  the  acts  to 
have  been  several.  R.  v.  StaflTord  and  others,  1  B.  &  Ad.  874.  This,  in  Eng- 
land, is  said  by  Mr.  Serjeant  Talfourd  to  be  the  more  usual  and  convenient 
course ;  though  a  distinct  indictment  might,  in  point  of  law,  be  maintained 
against  each,  as  all  offences  are,  in  their  nature,  several.  Reg.  v.  Atkinson  et  al., 
Ld.  Raym.  1248;  Salk.  32;  Cord.  v.  Harley,  7  Met.  462.  A  joint  indictment, 
however,  prepared  on  this  basis,  is  in  its  nature  several  also ;  for  the  issues  upon 
it  are  joined  distinctly  between  the  prosecution  and  each  defendant ;  the  de- 
fendants may  plead  in  different  ways,  and  although  they  plead  similar  pleas, 
may,  in  case  of  felony,  procure  several  trials,  by  severing  in  their  challenges. 
So,  also,  some  may  be  convicted  and  others  acquitted,  except  where  the  offence 

10 


JOINDER    OP^    DEFENDANTS.  (2) 

is  one  which  cannot  be  committed  by  less  than  two,  as  conspiracy  ;  or  less  than 
three,  as  riot ;  when  if  the  jury  acquit  all  the  parties  charged  on  the  record  but 
one,  in  the  first  case,  or  two  in  the  second,  all  must  be  acquitted,  unless  it  is 
laid  and  found  that  the  offence  was  committed  with  others  to  the  jurors  un- 
known. Thus,  several  may  be  joined  in  an  indictment  for  publishing  a  libel, 
where  all  joined  in  the  publication  (R.  v.  Benfield  and  Saunders,  2  Burr.  R. 
980)  ;  and  lor  obtaining  money  under  false  pretences,  when  all  were  present  aid-, 
ing  and  assisting  in  the  common  object  of  fi-aud.  Reg.  u.  Young  et  al,  1  Leaeh, 
505;  Com.  v.  Call,  21  Pick.  515;  Com.  v.  Harley,  7  Met.  462.  Three  wiere 
jointly  charged  with  procuring  certain  other  persons  to  utter  a  forged  will.  The 
only  evidence  for  the  crown  was  of  separate  acts,  done  at  separate  times  and 
places  by  each  of  the  persons  charged  as  accessories ;  at  the  end  of  that  evi- 
dence, one  pleaded  guilty.  For  the  rest  it  was  said  that  only  one  could  on  the  evi- 
dence be  convicted.  It  was  held,  however,  that  the  rest  might  be  convicted.  Reg. 
V.  Barker  and  others,  C.  &  K.  442.     See  R.  v.  Massingham,  1  M.  C.  C.  R.  257. 

But  where  the  offence  of  each  is  entirely  distinct  in  its  nature,  or  arises  out 
of  some  personal  duty  or  omission,  each  ought  to  be  separately  indicted,  or,  at 
all  events,  severally  charged.  Wh.  C.  L.  §  430.  Thus,  indictments  against 
two  or  more  jointly  for  perjury,  as  common  scolds,  or  for  exercising  a  trade  with- 
out serving  an  apprenticeship,  are  bad ;  for  the  acts  complained  of  are  essen- 
tially and  necessarily  several.  R.  v.  Phillips  and  others,  2  Strange,  921 ;  Reg. 
V.  Hodson,  6  Mod.  210.  And  though  several  defendants  may  be  included  in 
one  indictment  for  several  distinct  misdemeanors  of  the  same  kind,  as  for  sev- 
erally keeping  disorderly  houses  (2  Hale,  1 74,  cited  R.  v.  Kingston  and  others, 
8  East  R.  4),  it  is  neither  discreet  nor  proper,  for  the  court  might  (at  all  events 
before  plea,  or,  as  it  seems,  even  before  the  jury  is  charged  with  them ;  Reg.  v. 
Norton,  8  C.  &  P.  196)  quash  such  an  indictment  for  any  inconvenience  shown 
to  arise  from  the  joinder  of  different  counts  against  different  offenders  (lb. ;  see 
Lord  Raym.  1248)  ;  or,  if  the  objection  is  not  made  till  after  the  jury  has  been 
charged,  might  put  the  prosecutor  to  his  election;  see  p.  191,  Dickinson's  Q.  S. 
Objection  to  an  indictment  for  improper  joinder  of  defendants  in  it,  is  too  late 
afler  verdict.    Reg.  v,  Hayes,  2  M.  &  Rob.  155. 

To  support  conspiracy  it  is  necessary  that  two  or  more  defendants  should  be 
charged  to  have  been  engaged  (R.  v.  Kinnersely,  1  Strange,  193  ;  R.  v.  Sud- 
burg,  12  Mod.  262  ;  13  East,  412 ;  1  Ld.  Raym.  484  ;  State  v.  Allison,  3  Yerg. 
428 ;  People  v.  Howell,  4  Johns.  296  ;  Turpin  v.  State,  6  Blackf  72)  ;  though  it 
is  sufficient  to  aver  the  offence  to  have  been  committed  by  one  defendant  partic- 
ularly named,  together  with  others  to  the  inquest  unknown  ;  and  the  same  law 
applies  to  riot,  with  the  exception  that  in  the  latter  offence  three  or  more  de- 
fendants must  be  joined.    See  Wh.  C.  L.  §  431. 

If  two  or  more  be  jointly  charged  with  having  committed  a  single  offence, 
they  cannot  be  separately  convicted  of  separate  parts  of  it.  But  both  may  be 
convicted,  or  one  only,  and  the  other  acquitted  of  the  whole  charge.  See  R.  v. 
Hempstead,  R.  &  R.  344  ;  also  R.  i'.  Batterworth,  and  R.  v.  Messingham,  1 
Mood.  C.  C.  257.  In  R.  v.  Harris,  Balls  &  Moses,  7  C.  &  P.  416,  three  were 
jointly  indicted  at  the  central  criminal  court  for  feloniously  using  plates  con- 

11 


(2)  PROPER   ADDITION    OP   ACCUSED   PARTY. 

taining  impressions  of  forged  notes.  It  was  held  that  a  singly  using  the  plates 
by  each  of  the  three  while  alone,  would  not  suffice  tor  a  conviction  ;  but  the 
jury  must  select  some  one  particular  time  after  all  three  had  become  connected, 
viz.  a  time  when  they  were  all  present  together  at  one  act,  or  assisting  in 
such  one  act,  as  by  two  using  and  one  watching  at  the  door  to  prevent  disturb- 
ance, and  the  like.     See  also  Com.  v.  Miller,  2  Par.  481. 

^  (e)  Proper  addition  of  the  accused  parly.  The  statute  1  Hen.  V.  c.  5,  enacts, 
that  in  all  indictments  on  which  process  of  outlawry  lies,  additions  shall  be  made 
to  the  defendants'  names,  of  their  estate  or  degree,  or  mystery,  and  of  the  towns 
or  hamlets,  or  places,  and  the  counties  of  the  which  they  were  or  are  conversant. 
This  statute  has  been  either  recognized  as  in  force  in  those  states  where  the 
question  has  been  brought  up  independent  of  local  legislation,  or  has  been  sub- 
stantially reenacted.  State  v.  Hughes,  2  Har.  &  M'H.  479  ;  Com.  v.  Sims,  2 
Va.  Cases,  374  ;  Com.  v.  Lewis,  1  Met.  151  ;  State  v.  Bishop,  15  Maine,  122. 
See,  generally,  AVh.  Cr.  L.  §  243. 

In  England,  if  an  accused  have  several  titles,  he  must  be  described  by  the 
most  honorable ;  and  if  he  have  none  by  birth,  office,  creation,  or  reputation, 
and  is  described  by  any  such,  or  if  a  gentlewoman  be  named  merely  spinster,  or 
a  yeoman  is  named  gentleman,  the  indictment  will  be  defective.  2  Inst.  699. 
But  a  trader  may  be  sued  either  by  his  degree  or  rank  in  society,  independent 
of  his  trade,  or  by  the  name  of  his  vocation.  Erskine  v.  Murray,  2  Ld.  Raym. 
1542.  A  misdescription,  however,  calculated  to  throw  contempt  on  the  defend- 
ant, is  bad,  and  on  this  ground  an  indictment  was  held  vicious  in  abatement, 
"vhich  described  the  defendant  as  a  lottery  vender,  when  he  was  in  fact  a  lottery 
jroker.    State  v.  Bishop,  15  Maine,  122. 

By  Stat.  8  Hen.  VI.  c.  10,  s.  1,  2,  the  indictment  ought  to  contain  the  addition 
of  ihQ  place  and  county  where  the  party  indicted  is  "  conversant  and  dwelling." 
The  county  in  the  margin  refers  to  the  place  where  the  offence  was  committed, 
and  not  to  the  habitation  of  the  party.  Accordingly,  an  outlawry  for  perjury 
was  reversed  on  error,  for  the  party  was  indicted  by  the  name  "  N.  L.,  late  of 
the  parish  of  A,"  without  showing  in  what  county  A.  is,  though  " Middlesex " 
was  in  the  margin.    Leech's  case,  Cro.  Jac.  167. 

Neither  yeoman  nor  laborer  are  good  additions  in  case  of  a  woman  ;  and 
widow,  singlewoman,  wife  of  A.  B,,  and  spinster,  are  good  additions  of  the 
estate  and  degree  of  a  woman  ;  but  burgess,  and  citizen,  and  servant,  are  all  of 
them  too  general,  and  thei'efore  not  good  additions  of  the  estate  or  degree  either 
of  a  man  or  woman.  IlaAvk.  b.  2,  c.  23,  s.  Ill  ;  2  lust.  668  ;  1  Bla.  C.  405 ;  Ld. 
Raym.  1179  ;  6  M.  &  S.  32  ;  R.  v.  Checketts,  6  M.  &  S.  38.  As  to  yeomen,  see 
1  Bla.  C.  406  ;  2  Inst.  595,  668.  Indictment  for  assault,  addition  was  stated  as 
gentleman.  Plea,  that  he  was  an  esquire  and  no  gentleman,  overruled.  Per 
Fortescue,  J.,  "  This  is  in  addition  only,  not  in  the  name,  and  they  are  the  same, 
and  every  esquire  is  a  gentleman,  and  gentlemen  are  called  esquires."  Reg.  v. 
Chapman,  cited  by  Fortescue,  J.,  in  Williams  v.  Francis,  Fort.  R.  354.  Wife 
was  amended  to  widow,  in  a  case  where  the  prisoner,  charged  with  murdering 
her  husband,  was  described  as  H.,  the  wite  of  J.  O.,  late  of,  &c.,  laborer.  Reg. 
V.  Orchard,  8  C.  &  P.  565,  Lord  Abinger ;  see  Reg.  v.  T.  and  M.  Woodward,  8 
12 


SENIOR   AND   JUNIOR.  (2) 

C.  &  P.  561.  Prisoners  jointly  indicted  for  stealing  clothes,  M.  W.  being 
described  in  indictment  as  " Margaret  Woodward,  singlewoman"  and  she 
pleaded  to  that  indictment.  The  only  evidence  was  that  the  prisoners  ad- 
dressed each  other  as  husband  and  wife,  and  passed  and  appeared  as  such,  and 
were  spoken  of  as  such  by  witnesses  lor  crown.  Patterson,  J.  :  "  This  is  evidence 
on  which  the  jury  must  say  whether  they  are  satisfied  that  the  prisoners  are  in 
fact  husband  and  wife,  even  though  the  woman  has  pleaded  to  indictment 
charging  her  as  '  singlewoman.'  She  ought  to  have  been  described  as  wife,  not 
as  singlewoman."  The  woman  was  acquitted  ;  the  man  convicted.  There  are 
few  cases  in  the  American  books  where  the  niceties  of  the  English  law  of  addi- 
tions have  been  recognized.  A  want  of  an-  addition  in  toto  is  ground  for  a 
motion  to  quash;  but  that  the  additions  "yeoman,"  "spinster,"  "gentleman," 
"  laborer,"  may  be  relied  upon  universally  in  their  proper  places  as  sufficient. 
In  Virginia,  it  is  true,  in  an  old  case,  the  difference  between  "  laborer "  and 
"  yeoman  "  was  held  material  (Com.  v.  Sims,  2  Va.  Cases,  374)  ;  but  the  present 
tendency  is  to  regard  the  existence  of  any  additions,  however  general,  as  enough. 
Perhaps  "yeoman  "  is  the  most  general  and  unexceptionable. 

(Senior  and  Junior.)  If  several  defendants  have  the  same  addition  it  is 
safest  to  repeat  the  addition  after  each  name,  applying  it  particularly  to 
every  one  of  them  ;  and  where  a  father  has  the  same  name  and  the  same 
addition  with  a  defendant,  being  his  son,  it  has  been  said  that  an  indictment 
is  defective  unless  it  add  the  addition  of  the  younger  to  the  other  additions ; 
but  where  the  father  is  a  defendant  without  his  son,  it  is  clear  that  there  is 
no  need  of  the  addition  of  the  elder.  Where  L.  W.  Sr.  and  L.  W.  Jr.  lived 
in  the  same  town,  on  an  indictment  against  L.  W.  evidence  is  not  admis- 
sible of  acts  done  by  L.  W.  Jr.,  as  it  is  to  be  presumed  that  the  indictment 
means  L.  W.  Sr.  State  v.  Vittum,  9  N.  Hamp.  519 ;  Jackson,  ex  dem.  Pell,  v. 
Provost,  2  Caines,  165  ;  but  see  Com.  v.  Perkins,  1  Pick.  388;  State  v.  Grant, 
22  Maine,  171  ;  Coit  v.  Starkweather,  8  Conn.  280.  But  it  would  seem  now 
that  "  Junior  "  is  no  part  of  the  name,  and  need  not  be  added.  R.  v.  Bailey, 
T.  C.  &  P.  264.  Hodgson's  case,  1  Lewin,  C.  C.  236 ;  State  v.  Grant,  22  Maine, 
171;  see  Wh.  C.  L.  §  249. 

In  Indiana  it  seems  no  addition  is  necessary ;  thus  in  State  v.  M'Dowell,  6 
Blackf.  49,  Dewey,  J.  said :  "  The  objection  urged  against  the  indictment  is, 
that  the  defendant  is  not  described  by  the  addition  of  his  degree,  or  mystery, 
and  place  of  residence.  By  the  common  law  no  addition  was  required  in  indict- 
ments against  persons  under  the  degree  of  a  knight.  1  Chit.  C.  L.  204.  The 
statute  of  additions,  1  Hen.  V.  c.  5,  enacts  that  defendants  shall  be  described 
by  adding  to  their  names  their  estate,  degree,  or  mystery,  and  place  of  resi- 
dence, in  all  cases  in  which  '  the  exigent  shall  be  aAvarded.'  It  has  been  held, 
in  the  construction  of  this  statute,  that  in  prosecutions  which  cannot  be  attended 
by  the  process  of  outlawry,  the  indictment  need  not  give  the  addition  of  the 
defendant ;  1  Chit.  C.  L.  206 ;  Bacon  Abr.  Indictment  ii. ;  lb.  Misnomer,  2  ; 
Hex  V.  Brough,  1  Wils.  244  ;  Cro.  Eliz.  148.  The  exigent,  being  a  step  in  the 
proceedings  of  outlawry,  is  unknown  to  our  laAV.  It  is  therefore  evident,  that 
the  statute  of  additions,  from  its  own  terras,  is  not  applicable  to  prosecutions  in 

13 


(2)  MYSTERY.  —  ERROR   IN    NAME    OR    ADDITION. 

this  State  ;  and  it  is  equally  clear,  that  the  common   law  does  not  require  the 
defendant  to  be  described  by  his  addition." 

(^Mystery  at  time  of  Jindinci.)  The  additions  of  estate,  degree,  and  mystery 
of  the  defendant,  are  not  sufficient  unless  they  be  the  same  which  he  had  at  the 
time  of  the  finding  of  the  indictment ;  and  in  this  respect  such  additions  diifer 
from  that  of  place,  which  is  sufficiently  shown  by  naming  the  defendant  late  of 
such  a  place  ;  and  such  additions  must  be  expressed  in  such  a  manner  that  it 
may  plainly  appear  to  refer  to  the  party  ;  and  therefore  it  is  not  well  expressed 
by  the  addition  of  his  mystery,  naming  him  son  of  A.  of  B.,  butcher,  because 
butcher  refers  to  it  rather  than  to  the  son.    2  Inst.  670  ;  2  Hale,  177. 

(^Place  of  residence  of  defendant.^  With  respect  to  residence,  it  is  a  good 
addition  of  tliis  kind  to  name  the  party  late  of  a  township  named  (see  Dickin- 
son's Q.  S.  p.  203  ;  R.  v.  Yandell,  4  T.  R.  521)  ;  in  which  respect  this  addition 
differs  from  that  of  the  estate,  degree,  or  mystery  ;  and  it  is  said  that  if  the  de- 
fendant be  named  commorant  in  A.  late  of  B.  it  is  sufhcicnt.  Cortizos  v.  Munoz, 
Stra.  924.  As  will  be  seen  in  the  forms  hereafter  given,  the  residence  in  most 
of  the  states  is  held  to  be  satisfied  by  the  allegation  "  late  of  the  county  afore- 
said," or  "  late  of  county."  In  England  greater  exactness  is  required; 
and  where  in  an  indictment  for  an  assault,  defendant  was  described  as  late  of  A. 
in  the  county  of  B.,  without  stating  that  A.  was  a  parish,  it  was  holden  bad ; 
although  the  oflence  was  laid  to  have  been  committed  at  the  parish  aforesaid; 
for  some  certain  venue  must  appear  on  the  face  of  the  record,  and  here  the 
offence  is  laid  at  the  parish  aforesaid,  and  no  parish  is  mentioned.  R.  v.  Math- 
ews, 2  Leach,  664  ;  5  T.  R.  162.  In  the  city  of  New  York  the  practice  is  to 
charge  "  late  of             ward  in  the  city  of  New  York." 

With  respect  to  addition  of  j)lace,  the  best  and  most  convenient  course  is  to 
state  that  in  which  the  prisoner  committed  the  offence ;  for  he  is  considered  as 
conversant  of  that  place,  and  by  this  means  the  confusion  of  stating  two  places 
in  the  indictment  is  avoided.     Hawk.  b.  2,  c.  27,  s.  125,  126.     Wh.  C.  L.  §  248. 

(Hoio  error  in  name  or  addition  operates.)  The  only  mode  by  which  at  any 
time  advantage  can  be  taken  by  a  prisoner  of  any  error  in  his  name  or  addition, 
is  by  plea  in  abatement  (State  v.  Lorey,  2  Brevard,  395  ;  I^ynes  v.  State,  5 
Port,  236  ;  State  v.  Hughes,  2  Har.  &  M'll.  479  ;  see  State  v.  Newman,  2  Car. 
Law  Rep.  74;  Com.  v.  Dedham,  16  Mass.  146;  Turns  v.  Com.,  6  Met.  225; 
Com.  V.  Sayers,  8  Leigh,  722  ;  R.  v.  Granger,  3  Burr.  1617)  ;  though  where  no 
addition  is  given,  or  where  there  is  no  Christian  name,  the  proper  course  is  to 
move  to  quash.  Wh.  C.  L.  §  245.  If  he  once  pleads  the  general  issue  not  guilty, 
he  cannot  afterwards  take  advantage  of  any  such  error,  for  he  is  precluded  and 
estopped  by  his  plea ;  and  he  is  not  obliged  to  take  advantage  of  an  error  in 
these  respects  by  pleading  in  abatement,  in  order  to  make  his  acquittal  a  valid 
bar  to  any  subsequent  prosecution  for  the  same  offence  ;  for  if  he  be  aflerwards 
indicted  for  the  same  offence  by  another  name  or  addition,  he  may  show  himself 
to  be  the  same  person  by  averment  and  evidence,  and  rely  with  success  on  his 
previous  acquittal,  notwithstanding  the  variance.  Hawk.b.  2,  c.  23,  s.  103,  104. 
A  plea  in  abatement  must  be  verified  by  aflidavit  exposing  the  defendant's  real 
name,  additions,  or  mystery,  as  the  case  may  be.   Com.  v.  Sayers,  8  Leigh,  722  ; 

14 


NAME.  TIME.  (2) 

R.  V.  Gran2;er,  3  Burr.  1607  ;  Rev.  Stat.  Mass.  c.  136,  s.  31.  An  error  as  to 
one  party  of  several  can  only  be  taken  advantage  of,  in  any  stage,  by  liim,  and 
does  not  affect  the  indictment  as  to  the  others.  2  Hale,  177.  In  England  such 
plea  was  always  of  small  benefit  to  the.  party  accused,  because  he  was  bound 
to  set  out  his  true  name  and  addition  in  it ;  and,  if  successful,  might  be  indicted 
for  the  same  felony  ;  while  if  unsuccessful,  in  the  English  practice,  sentence 
followed  in  misdemeanor  (1  Chit.  C.  L.  461)  ;  though  here  the  inclination  of 
authority,  judging  from  the  doctrine  arising  in  demurrer,  is  that  the  judgment 
would  be  respondeat  ouster.  Wh.  C.  L.  §§  527,  537,  572  ;  State  v.  Wilkins,  17 
Vt.  152  ;  Ross  v.  State,  9  Miss.  696. 

"Where  such  a  plea  is  put  in,  the  usual  course  is  to  reindict  the  defendant  by 
the  new  name  he  discloses,  and  to  let  the  old  indictment  drop.    Wh.  C.  L.  §  537. 
(  /)  See  the  subject  of  time  considered  in  Wh.  C.  L.  as  follows  :  — 
1st.  Time  must  be  averred,  but  not  generally  material,  §  263. 
2d.  What  precision  is  necessary  in  its  statement,  §  264. 
3d.  Initials  and  numerals,  §  265. 

4th.  Double  and  obscure  dates,  §  266. 

5th.   Historical  epochs,  §  269. 

6th.  Hour,  §  270. 

7th.  Record  dates,  §  271. 

8th.  "  Then  and  there,"  §  272. 

9th.  Repugnant,  future,  or  impossible  dates,  §  273. 
10th.  Cases  where  date  is  material,  §  275. 
Though  some  precise  day,  month,  and  year  must  be  charged  (State  v.  Beck- 
with,  1  Stew.  318;  Wh.  C.  L.  §§  261,  599  ;  R.  v.  Taylor,  3  B.  &  C.  502),  it  is 
not  necessary  to  sustain  the  precise  allegation  in  proof,  if  the  time  stated  be 
previous  to  the  finding  the  indictment  (Starkie,  C.  P.  58  ;  Shelton  v.  State,  1 
Stew.  &  Port.  238  ;  McBryde  v.  State,  34  Ga.  202 ;  Wh.  C.  L.  §  575);  but  it  is 
material  to  show  that  the  prosecution  was  commenced  in  due  time,  where  it  is 
enacted  that  it  shall  be  commenced  within  a  particular  time  (see  Salk.  369, 
378;  Carth.  501  ;  5  Mod.  446  ;  1  Ld.  Raym.  582  ;  10  Mod.  248);  and  where 
the  offence  is  statutory,  the  time  laid  must  be  subsequent  to  the  passage  of  the 
statute  by  which  the  offence  was  created.  It  is  not,  however,  necessary  to  allege 
thne  to  any  charge  of  mere  negation  or  omission.  R.  v.,  Holland,  5  T.  R.  616  ; 
Starkie's  C.  P.  61,  If  the  offence  is  laid  on  an  uncertain  or  impossible  day,  or 
on  a  future  day,  or  on  different  days,  or  on  such  a  day  as  renders  the  indictment 
repugnant  to  itself,  the  objection  is  fatal  in  arrest  of  judgment,  even  after  ver- 
dict. Thus  judgments  were  arrested  when  the  date  charged  was  November, 
1801,  and  the  25th  year  of  American  Independence,  the  dates  being  incon- 
sistent (State  t'.  Hendricks,  Conf.  N.  C.  R.  369)  ;  where  on  a  charge  of  com- 
pounding felony,  the  date  of  the  commission  of  the  offence  was  laid  anterior  to 
the  date  fixed  for  the  commission  of  the  larceny  (State  v.  Dandy,  1  Brevard, 
395)  ;  and  where  the  crime  was  alleged  to  have  been  committed  on  September 
30,  1033.  Serpentine  v.  State,  1  How.  Miss.  R.  260.  So  if  the  date  be  lefl 
blank.  State  v.  Beckwith,  1  Stewart,  318;  State  v.  Roach,  2  Hay.  552;  Tarn 
V.  State,  3  Miss.  43.     Where,  however,  an  indictment  tried  in  the  Jirst  year  of 

15 


(2)  CONTINUENDO.  —  HOUR   OP    COMMITTING   OFFENCE. 

George  IV.  stated  the  offence  as  having  been  committed  "  on  the  20th  July,  in 
the /our//t  year  of  the  reign  of  King  George  the  Fourth,"  it  was  holden  that  the 
words  '■'■fourth  year  of  the  "  might  be  rejected  as  superfluous,  and  the  indict- 
ment sustained.  R.  v.  Gill,  R.  &  R.  431.  See  R.  v.  Scott,  R.  &  R.414  ;  1  Russ. 
C.  M.  5G2,  S.  C.  And  where  it  was  made  a  statutory  misdemeanor  to  exhibit 
lights  to  persons  at  sea  "  between  September  and  April,"  an  allegation  that  the 
defendant  exhibited  lights  on  the  9lh  of  March,  was  held  sufficient  without 
specifically  averring  that  he  did  so  "  between  September  and  April."  6  Geo. 
IV.  c.  164,  s.  52;  R.  v.  Brown,  M.  &  M.  1G3;  per  Littledale  and  Gaselec,  Js. ; 
see  note  to  Harding  v.  Stokes,  Tyr.  &  Gr.  599.  It  seems  that  where  an  offence 
is  laid  contrary  to  the  form  of  a  statute,  it  is  necessary  to  state  it  to  have  been 
committed  "  after  the  passing  of  the  act,"  though  it  took  place  very  recently  be- 
fore, if  the  time  when  it  took  place  is  laid  and  proved  to  be  after  the  act  passed. 
See  judgment  of  Parke,  B.,  in  Harding  v.  Stokes,  Tyr.  &  Gr.  605.  If,  in  point  of 
fact,  an  offence  is  committed  after  a  day  fixed  by  a  statute,  as  that  on  and  after 
which  an  offence  may  be  laid  and  tried  as  if  committed  in  the  county  in  which 
the  offender  is  apprehended,  and  the  statute  does  not  vary  the  nature  and  char- 
acter of  the  offence,  the  having  laid  the  day  in  the  indictment  before  the  day 
fixed  by  the  statute,  will  not  vitiate.     R.  v.  Treharme,  1  Mood.  C.  C.  298. 

Clerical  errors  in  setting  forth  the  date,  are  liberally  treated.  Thus,  "first 
March"  was  held  sufficient  for  "first  of  March"  (Simmons  v.  Com.,  1  Rawle, 
142)  ;  and  where  the  caption  was  "  December  Sessions,  1818,"  the  date  was  held 
sufficiently  well  expressed  by  the  averment  "  in  the  year  aforesaid."  Jacob  v. 
Com.,  5  S.  &  R.  315.  The  setting  forth  of  the  date  in  Arabic  figures  is  enough. 
State  V.  Gilbert,  13  Vt.  647;  State  v.  Smith,  Peck,  165;  State  v.  Hodgdon,  3 
Vt.  481.  The  word  "being"  (exigtens)  will,  unless  necessarily  connected  with 
some  other  matter  (e.  ff.  by  the  word  then),  relate  to  the  time  of  the  indictment 
rather  than  of  the  offence.  See  1  Chit.  C.  L.  2d  ed.  220,  and  Reg.  v.  Silver- 
sides,  3  Q.  B.  R.  495  ;  Wh.  C.  L.  §§  261,  275,  599. 

(^Continuendo.)  In  nuisances,  and  cases  of  a  similar  character,  the  offence  may 
be  laid  with  a  cont'muendo.  Wh.  C.  L.  §  266.  It  has  been  held,  however,  that 
an  indictment  for  incest  was  vitiated  by  a  conlinuendo  (State  v.  Temple,  38  Vt. 
37),  and  that  an  averment  that  the  defendant  was  a  common  seller  of  spir- 
ituous liquors  from  a  day  named,  to  the  day  of  the  finding,  &c.,  of  this  indict- 
ment, was  fatally  defective.     Cora.  v.  Adams,  4  Gray  (Mass.),  57. 

(^Hour  of  committing  offence.)  It  is  not  necessary  to  state  the  hour  of  com- 
mitting the  offence,  except  where  its  indictable  nature  or  character  is  made  by 
statute  to  depend  on  the  hour  of  its  being  committed.  Thus,  as  burglary  can- 
not be  committed  in  twilight,  it  is  necessary  in  case  of  that  offence  to  allege  a 
certain  hour  in  the  night  at  which  it  was  committed,  in  order  that  the  fact  might 
appear  on  the  face  of  the  indictment  to  have  been  done  after  the  twilight  of  the 
evening,  and  before  that  of  the  morning.  R.  v.  Waddington,  2  East  P.  C.  513 ;  1 
Hale,  549  ;  2  Hawk.  c.  25,  s.  76,  77 ;  State  v.  G.  S.,  1  Tyler,  295  ;  Thompson  v. 
Com.,  4  Leigh,  652;  State  v.  Mather,  Chip.  32.  It  is  not  enough  to  lay  this 
offence  as  having  been  committed  between  the  hour  of  twelve  at  night  and  nine 
the  next  morning.     State  r.  Mather,  Chip.  32  ;  Wh.  C.  L.  §  270. 

16 


VI    ET    ARMIS.  —  TIME.  —  DESCRIPTION    OF   PARTY.  (2) 

((/)  (^Vi  et  arrnis.)  "VVliatever  may  once  have  been  thought  of  the  magic  of 
these  words,  it  is  now  settled  that  they  are  wholly  unessential.  The  statute  37 
Hen.  Vni.  c.  8,  clearly  dispenses  with  them,  even  if  before  that  they  possessed 
any  signification  or  importance;  and  the  current  of  authority,  even  in  those  States 
where  that  statute  is  not  in  force,  is  to  reject  them  altogether.  2  Hawk.  c.  25,  a. 
90 ;  3  P.  Wms.  497  ;  Wh.  C.  L.  §  403  ;  State  v.  Kean,  10  N.  Hamp.  34  7  ;  State 
V.  Hunger,  15  Vt.  290;  2  Tyler,  266  ;  Tipton  j;.  State,  2  Yerg.  542;  Territory  v. 
M'Farlane,  1  Mart.  224 ;  State  v.  Thomson,  2  Rice's  Dig.  386.  In  Com.  v. 
Martin,  reported  2  Barr,  241,  the  exception  taken  to  the  indictment,  which  was 
for  assault  and  battery,  was  the  want  of  these  words,  and  though  it  does  not 
distinctly  appear  so  on  the  face  of  the  report,  the  intimation  of  the  court  was 
that  they  are  wholly  unnecessary. 

(/i)  In  this  country  the  usual  pi-actice  in  averring  place  is  by  charging  the 
offence  to  have  taken  place  in  the  county  where  it  was  committed.  Wh.  C.  L. 
§  277;  Duncan  v.  Com.,  4  S.  &  R.  448.  In  Massachusetts,  however,  it  has  been 
held,  that  if  from  the  terms  of  the  location  of  a  town  or  district  by  the  act  of  in- 
corporation, the  court  cannot  conclude  that  the  whole  town,  district,  or  unincor- 
porated place  lies  in  the  same  county,  both  town  and  county  must  be  averred 
(Com.  V.  Springfield,  7  Mass.  9) ;  and  in  the  same  case  it  was  declared,  that  the 
proper  course  in  that  State  in  all  capital  cases,  is  to  lay  both  county  and  town. 
In  the  city  of  New  York,  the  practice  is  to  name  the  jvai'd,  in  the  city  of  New 
Orleans,  the  parish.  See,  as  to  limitations  of  the  general  principle,  Wh.  C.  L. 
§  279,  &c. 

{Repeating  time  and  place  to  every  material  fact.')  When  time  and  place  have 
been  once  named  with  precision,  the  words  "  then  and  there,"  referring  to  the 
last  antecedent,  will  afterwards  sufficiently  express  both.  Wh.  C.  L.  §  272 ; 
Stout  V.  Com.,  11  S.  &  R.  177;  State  r.  Reid,  20  Iowa,  413.  "Where  the  circum- 
stances stated  in  indictments  for  misdemeanors  are  merely  continuous,  as  in  as- 
saults with  aggravation,  one  mention  of  time  and  place  as  apj^licable  to  all  circum- 
stances, will  suffice;  but  this  is  otherwise  in  felonies  where  distinct  and  inde- 
pendent circumstances  are  necessary  to  the  charge.  2  Hale,  178;  R.  v.  Cotton, 
Cr.  El.  738.  But  the  mere  qualification  '•  and  "  without  the  word  "  then,"  is  in- 
sufficient to  extend  the  original  allegation  of  time  to  the  averment  thus  intro- 
duced. Wh.  C.  L.  §  272.  Where  the  time  and  place  are  immaterial,  they  may 
be  introduced  by  the  words  to  ivit :  though  without  a  scilicet  in  such  case,  a 
variance  would  not  prejudice ;  and  as  in  cases  where  they  are  of  the  essence 
of  the  charge,  a  scilicet  will  not  aid  a  variance  in  proof.  Bushy  v.  Watson, 
Bla.  Rep.  1050.     It  is  rarely  ever  useful.     Dickinson's  Q.  S.  6th  ed.  212. 

(?')  {The  description  of  the  parly  against  whose  person  or  properly  the  offence 
was  committed.)  The  indictment  must  be  so  certain  as  to  the  party  against 
■whom  the  offence  was  committed,  as  to  enable  the  prisoner  to  know  and  under- 
stand who  that  party  is,  and  what  charge  he  is  called  on  to  answer.  2  Curw. 
Hawk.  319;  State  v.  McConkey,  20  Iowa,  574.  And  an  error  in  settuig  forth 
the  names  of  such  party,  is  much  more  serious  than  in  setting  forth  the  name  of 
the  defendant  himself,  as  the  latter  can  only  be  taken  advantage  of  by  abato- 

voi>.  I.  —  2  2  J 


(2)  MISSPELLING. BASTARDS. 

ment,  but  the  former  is  proper  ground  for  acquittal,  in  ease  of  variance  in  evi- 
dence, or  arrest  of  judgment  in  case  of  variance  on  record.     Wli.  C.  L.  §  595-9. 

(^Misspelling.)  Tlie  misspelling  of  a  surname,  when  its  usual  pronunciation  is 
satisfied  by  the  manner  in  wliich  it  is  written  in  the  record,  as  "  Whyneard  "  for 
"  Winyard,"  is  sufficient  (R.  v.  Foster,  R.  &  R.  412;  Wh.  C.  L.  §  258;  State 
U.Lincoln,  17  Wis.  579;  Point  r.  State,  37  Ala.  148;  Aaron  v.  State,  lb. 
106 ;  Cora.  v.  AVoods,  10  Gray  (Mass.),  477)  ;  and  in  one  case  the  court  went  so 
far  as  to  say  that  "  Harrison  "  was  not  a  fatal  variance  from  "  Harris  "  (State  v. 
France,  1  Overton's  R.  434)  ;  though  in  Pennsylvania,  in  Com.  r.  Gillespie,  7  S. 
&  R.  469,  the  extreme  position  wns  taken  that  "  Burrall  "  was  sufficient  to  arrest 
judgment  where  the  proof  was  that  the  name  was  Burril.  The  word,  however, 
it  must  be  observed,  occurred  in  the  copy  of  a  lottery  ticket,  pretended  to  be  set 
out  in  the  indictment.  See  Wh  C.  L.  §§  254-5,  595-9.  The  question  of  idem 
sonans  is  for  the  jury.     Wh.  C.  L.  §  258. 

A  mere  statement,  it  seems,  of  the  Christian  name,  without  any  surname,  will 
not  suffice.    Hawk.  b.  2,  c.  25,  s.  72;  Wh.  C.  L.  §  254. 

(^Unknown.)  Where  the  name  and  addition  of  the  injured  party  cannot  be 
ascertained,  as  where  a  body  of  a  murdered  person  is  found  who  cannot  be  iden- 
tified, or  goods  are  found  on  a  highwayman,  &c.,  the  indictment  may  allege  the 
party  to  be  "to  the  jurors  unknown"  (2  Hale,  181  ;  see  2  B.  &  Aid.  580  ;  Wh. 
C.  L.  §  251)  ;  nor  does  it  matter  that  the  name  was  discovered  before  the  trial. 
People  V.  White,  32  N.  Y.  465.  To  support  the  description  of  "unknown,"  re- 
marks Mr.  Serjeant  Talfourd,  it  must  appear  that  the  name  could  not  well  have 
been  supposed  to  have  been  known  to  the  grand  jury  (R.  v.  Stroud,  C.  &  K.  187), 
and  see  Com.  v.  Stoddart,  9  Allen  (Mass.),  280.  And  should  it  appear  that 
the  names  were  in  fact  known  when  the  indictment  was  found,  or  could  have 
then  been  ascertained  by  the  use  of  due  diligence,  the  defendant  is  entitled  to  an 
accjuittal.  lb.  ;  Cheek  v.  State,  38  Alab.  227.  Unless  the  traverse  jury  are 
satisfied  that  the  name  Avas  unknown  to  the  grand  jury,  it  is  said,  in  Massachu- 
sett:J,  that  the  defendant  should  be  acquitted.  Com.  v.  Stoddart,  9  Allen,  282. 
Jn  Indiana  this  doctrine  has  been  pushed  to  the  questionable  extreme  that  the 
fact  of  the  name  being  unknown  must  be  substantively  proved,  and  that,  if  there 
be  no  proof  on  this  point,  a  conviction  will  not  be  sustained.  Stone  v.  State,  30 
Ind.  115.  "Unknown"  was  held  sufficient  where  there  was  evidence  that  the 
party  injured,  a  bastard  child  who  died  at  twelve  days  old  unbaptized,  had  been 
called  by  its  mother  Mary  Ann.  R.  v.  Smith,  1  Mood.  C.  C.  295  ;  S.  C.  6  C. 
&  P.  151. 

(Bastards.)  A  bastard  which  had  never  acquired  a  name,  is  sufficiently  iden- 
tified by  showing  the  name  of  its  parent,  thus  :  "  a  certain  illegitimate  male 
child,  then  lately  born  of  the  body  of  A.  B.  (the  mother).  Reg.  v.  Mary  and 
Jane  Hogg,  2  M.  &  Rob.  380.  See  R.  v.  Hicks,  2  lb.  302,  where  an  indictment 
ibr  child  murder  was  held  bad  for  not  stating  the  name  of  the  child  or  account- 
ing for  its  omission.  A  bastard  must  not  be  described  by  his  mother's  name  till 
he  has  acquired  it  by  reputation.  R.  v.  Clark,  R.  &  R.  358  ;  Wakefield  v. 
Mackey,  1  Phill.  R.  133,  contra.    A  bastard  child,  six  weeks  old,  who  was  bap- 

18 


MIDDLE    NAMES.  — JUNIOR.  (2) 

tized  on  a  Sunday,  and  down  to  the  following  Tuesday  had  been  called  by  its 
name  of  baptism  and  mother's  surname,  was  held  by  Erskine,  J.  to  be  jiroperly 
described  by  both  those  names  in  an  indictment  for  its  murder  (Reg.  v.  Crans, 
8  C.  &  P.  765)  ;  but  where  a  bastard  was  baptized  "  Eliza,"  without  mentioning 
any  surname  at  the  ceremony,  and  was  afterwards,  at  thi'ee  years  old,  suHbcated 
by  the  prisoner,  an  indictment,  styling  it  "  Eliza  Waters"  that  being  the  moth- 
er's surname,  was  held  bad  by  all  the  judges,  as  the  deceased  had  not  acquired 
the  name  of  Water ti  by  reputation.  R.  v.  Ellen  Waters,  1  Mood.  C.  C.  457. 
(N.  B.  No  baptismal  register  or  copy  of  it  Avas  produced  at  either  trial.  Semh.  : 
"Eliza"  would  have  sufficed.  See  Reg.  v.  Stroud,  C.  &  K.  187,  and  cases  col- 
lected; Williams  r.  Bryant,  5  M.  &  W.  447.)  In  the  previous  case  of  R.  v. 
Frances  Clark,  R.  &  R.  358,  an  indictment  stated  the  murder  of  "  George  Lake- 
man  Clark,  a  base-born  infant  male  child,  aged  three  weeks,"  by  the  prisoner, 
its  mother.  The  child  had  been  christened  George  Lakeman,  being  the  name 
of  its  reputed  father,  and  was  called  so,  and  not  by  any  other  name  known  to 
the  witnesses.  Its  mother  called  it  so.  There  was  no  evidence  that  it  had  been 
called  by  or  obtained  its  mother's  name  of  Clark.  The  court  held  him  im[)rop- 
erly  laid  Clark,  and,  as  nothing  but  the  name  identified  him  in  it,  the  conviction 
was  held  bad.  See  also  R.  v.  Sheen,  2  C.  &  P.  634.  However,  in  Reg.  v.  Biss, 
8  C.  &  P.  773,  an  indictment  against  a  married  woman  for  murder  of  a  legiti- 
mate child,  which  stated  "  that  she,  in  and  upon  a  certain  infant  male  child  of 
tender  years,  to  wit,  of  the  age  of  six  weeks,  and  not  baptized,  feloniously  and 
wilfully,  &c.,  did  make  an  assault,  &c.,  was  held  insufficient  by  all  the  judo-es, 
as  it  neither  stated  the  child's  name,  nor  that  it  was  "  to  the  jurors  unknown." 
Semhle :  it  would  have  sufficed  to  state  him  as  "  a  certain  male  child,  &c.,  of  ten- 
der age,  that  is  to  say,  about  the  age  of  six  weeks,  and  not  baptized,  born  of  the 
body  of  C.  B."     See  2  C.  &  P.  635,  n.    See  also  R.  v.  Sheen,  2  C.  &  P.  634, 

{Middle  Names.)     See  (2)  note  {d). 

{Double  Names.)  Where  a  party  is  as  usually  known  by  one  name  as  an- 
other, he  may  be  described  by  either,  and  by  the  name  which  he  has  assumed, 
even  though  shown  not  to  be  his  right  name.  R.  v.  Norton,  R.  &  R.  509;  R. 
V.  Berriman,  5  C.  &  P.  601  ;  Anon.,  6  C.  &  P.  408.  So  where  an  indictment 
charged  the  name  of  the  person  slain  as  Marie  Gardiner  alias  Maria  Bull,  and 
the  proof  showed  her  real  name  to  be  IMaria  Frances  Bull,  though  she  was  gen- 
erally known  by  the  name  in  the  indictment,  it  was  held  sufficient.  State  v. 
Gardiner,  Wright's  R.  392. 

K  a  false  description  be  added  to  the  name,  as  if  a  female  feloniously  mar 
ried  by  a  man  whose  wife  is  still  alive,  be  described  a  "  widow,"  when  she  is 
known  to  be  a  singlewoman,  the  error  will  be  fatal,  though  no  description  of 
her  was  requisite.     R.  v.  Deeley,  1  Mood.  C.  C.  R.  303  ;  4  C.  &  P.  579   (A.  D. 
1831). 

("  Junior.")  Where  the  party  injured  has  a  mother  or  father  of  the  same 
name,  it  is  better  to  style  the  prosecutor  "the  younger,"  as  it  may  be  presumed 
that  the  parent  is  the  party  meant;  for  George  Johnson  means  G.  J.  the  elder, 
unless  the  contrary  is  expressed.  Singleton  i'.  Johnson,  9  M.  &  W.  0  7.  But 
this  was  held  immaterial,  where  it  is  sufficiently  proved  who  Elizabeth  Edwards, 

19 


(2)  GENERAL   STATEMENT.  ALLEGATION    OF    INTENT. 

the  party  described  assaulted,  was,  namely,  the  daughter  of  another  Elizabeth 
Edwards  (R.  v.  Peace,  3  B.  &  Aid.  519)  ;  and  the  latter  law  now  generally  ob- 
tains. Hodgson's  case,  1  Lewin,  C.  C.  236;  State  v.  Grant,  22  Maine,  171  ;  11. 
V.  Bailey,  7  Carr.  &  P.  264.     See  Wh.  C.  L.  §  249. 

As  to  statement  of  offence,  see  Wh.  C.  L.  as  follows :  — 
I.   General  Statement. 

1st.   Oflence  must  be  made  judicially  to  appear,  §  285. 
2d.    Statement  must  be  technically  exact,  §  287. 
3d.    Not  enough  to  charge  a  conclusion  of  law,  §  288. 
4th.  Common  barrator  and  common  cheat,  §  289. 
5th.  Matters  unknown,  §  290. 
6th.  Bill  of  particulars,  §  291. 
7th.  Surplusage  need  not  be  stated,  §  291. 
8th.  Alternative  or  disjunctive  statements,  §  294. 
9th.  Knowledge  and  intent,  §  297. 
10th.  Inducement  and  aggravation,  §  298. 
11th.   Objects  for  which  particularity  is  required,  §  299. 
(fl)  Identification,  §  300. 
(ft)   Protection,  §  301. 
(c)   Indulgence,  §  302. 
{(l)  Preparation,  §  303. 
(e)   Sentence,  §  304. 
U.  Personal  Chattel. 

1st.  Indefinite,  insensible,  or  lumping  descriptions,  §  354. 
.   2d.    Value,  §  362. 
3d.  Money  or  coin,  §  363. 

III.  Technical  Averments,  §  398. 
1st.  "  Traitorously,"  §  398. 

2d.  «  Feloniously  did  kill,"  "  Malice  aforethought,"  "  Strike,"  §  399. 

3d.  "  Feloniously  "  —  when  necessary,  and  when  it  may  be  discharged 
as  surplusage,  §  400. 

4th.  "  Ravish,"  "  Carnally  knew,"  "  Forcibly,"  "Falsely,"  §  401. 

5th.  "  Burglariously,"  "  Feloniously  took,"  "  Against  the  will,"  "  Pirat- 
ically," "  Unlawfully,"  "  With  a  strong  hand,"  §  402. 

6th.  "  Vi  et  armis,"  §  403. 

IV.  Clerical  Errors,  §  405 

(y)  (Allegation  of  intent.)  What  the  law  forbids  to  be  done,  it  becomes  ille- 
gal to  do  wilfully  (Fergus  v.  State,  6  Yerg.  345  ;  Wh.  C.  L.  §  297)  ;  on  which 
account  the  doing  it  will  be  the  subject  matter  of  an  indictment  as  contempt  of 
the  statute  (Crowther's  case,  Cro.  El.  655)  ;  without  the  addition  of  any  corrupt 
motives  (per  Ashurst,  J.,  R.  v.  Sainsbury,  4  T.  R.  451,  cited  2  A.  &  E.  612)  ;  for 
disobedience  of  an  act  of  the  legislature  is  indictable  on  the  principles  of  the 
common  law,  though  a  pecuniary  penalty  may  also  be  provided  for  it  (R.  v. 
Jones,  Strange,  1146)  ;  indictment  for  not  taking  on  defendant  the  office  of  over- 
seer on  a  regular  appointment.  R.  v.  Harris,  R.  v.  Crorsley,  10  A.  &  E.  132. 
But  the  intention  of  the  party,  at  the  time  he  commits  an  act  charged  as  an 
20 


CONCLUSION    OF   INDICTMENTS.  (2) 

offence,  is  often  as  necessary  to  be  proved  as  any  other  fact  laid,  though  it  can 
only  be  proved  by  overt  acts,  every  man  being  supposed  to  intend  the  necessary 
consequence  of  his  own  acts.  R.  v.  Harrington,  R.  &  R.  207.  When  more  than 
one  criminal  intent  is  averred,  the  averment  is  divisible,  and  only  one  need  to 
be  proved ;  e.  g  if  a  person  is  charged  with  assaulting  a  child  with  intent  to 
abuse  and  carnally  know  her,  he  may  be  convicted  of  an  assault  with  an  intent 
to  abuse  her  only.  R.  v.  Dawson,  2  Stark.  62;  Shaw's  case,  2  R.  789;  Figgins 
V.  Cogswell,  3  M.  &  S.  369.  As  to  intent  in  uttering  a  counterfeit  half-crown 
in  charity,  see  Page's  case  (on  2  W.  IV.  c.  34,  §  7),  8  C.  &  P.  22 ;  and  Alldy's 
case  for  erasing  and  altering  a  stamped  post-horse  license,  both  before  Ld.  Abin- 
ger,  C.  B.,  8  C.  &  P.  136.     See  Wh.  C.  L.  §  297. 

(Ic)  (^Conclusion  of  indictments  at  common  law.)     See,  on  this  point,  Wh.  C. 
L.  as  follows  :  — 

1st.  What  conclusions  are  required  by  the  constitutions  and  statutes  of 
the  several  States,  §  410. 

2d.   When  the  conclusion  is  to  be  statutory,  §  411. 

3d.  When  the  statutory  conclusion  must  be  in  the  plural,  §  412. 

4th.  When  the  statutory  conclusion  maybe  rejected  as  surplusage,  §  413. 
The  old  reason  of  the  ordinary  conclusion  of  an  indictment  at  common  law, 
^^  against  the  peace  of  our  said  lady  the  queen,  her  crown  and  dignity,"  was  that 
these  words  were  always  necessary  in  order  to  show  to  whom  the  forfeiture  ac- 
crued ;  whether  in  misdemeanor  (R.  v.  Taylor,  3  B.  &  C.  502)  ;  common  law 
felony  (R.y.  Cook,  R.  &  R.  C.  C.  176  ;  2  Russ.  C.  &  M.  172)  ;  or  felony  created 
by  statute  (lb.  1  Bla.  C.  IIG).  The  only  exception  was  in  an  indictment  for  a 
mere  nonfeasance  at  common  law,  when  it  is  said  their  omission  would  not  prej- 
udice (per  Holt,  C.  J. ;  Fortescue,  131  R.)  ;  and  they  are  always  necessary  in  an 
offence  against  a  statute.  In  this  country',  though  the  reason  no  longer  works, 
the  form  is  preserved,  and  is  in  many  instances  made  imperative  by  constitutional 
enactment,  as  will  be  seen  in  the  next  chapter.  In  offences  of  all  characters, 
the  "  contra  pacem  "  is  essential ;  though  it  has  been  said  in  Alabama  that  if  the 
indictment  concludes  "  contra  pacem,"  it  is  not  necessary  for  this  conclusion  to  be 
attached  to  the  prior  counts  (McGuire  v.  State,  37  Ala.  161)  ;  and  the  point  on 
which  any  discretion  may  be  exercised  is  in  the  omission  or  introduction  of  the 
conclusion,  "  contra  formam  statuti."  And  here  it  may  be  observed,  that  in  all 
cases  of  doubt,  it  is  proper  to  introduce  this  conclusion,  and  even  in  a  clear 
common  law  case,  it  may  always  be  disregarded  as  surplusage.  Ld.  Raym.  149, 
1164  ;  R.  r.  Matthews,  5  T.  R.  162  ;  4  lb.  202  ;  1  Saund.  135,  n.  3  ;  State  v.  Buck- 
man,  8  N.  Hamp.  203 ;  Knowles  v.  State,  3  Day,  103  ;  State  v.  Cruiser,  3  Harris, 
108;  Southworth  v.  State,  9  Conn.  560;  Com.  v.  Gregory,  2  Dana,  417  ;  Com.  v. 
Hoxey,  16  Mass.  385  ;  Resp.  v.  Newell,  3  Yeates,  407  ;  Pa.  v.  Bell,  Add.  171 ;  2 
Hale,  190  ;  Aleyn,  43  ;  1  Salk.  212-13 ;  5  T.  R.  162 ;  2  Leach,  584 ;  2  Salk.  460 ; 
1  Ld.  Raym.  1163  ;  4  T.  R.  202;  Hawk.  b.  2,  c.  25,  s.  115;  Bac.  Ab.  Indict- 
ment H.  2 ;  Burn's  Just.  Indictment  ix.;  Haslip  v.  State,  4  Hay.  273 ;  Wh.  C.  L. 
§  413.  In  a  large  class  of  offences,  however,  its  introduction  is  imperative. 
Thus,  where  an  offence  is  created,  or  where  a  misdemeanor  is  raised  into  a 
felony  by  statute,  the  words  "  contrary  to  the  form  of  the  statute  in  such  case 

21 


1 


(2)  CONCLUSION    OP    INDICTMENTS. 

made  and  provided,"  must  be  inserted  citlicr  before  or  after  the  words  "  against 
the  peace,"  &c.  2  Hale,  192;  2  Hawk.  c.  25,  s.  116  ;  1  Salk.  370;  2  R.  &  R.  38; 
Wh.  C.  L.  §  411.  Where  the  matter  charged  is  no  offence. at  common  law,  the 
omission  of  these  words  will  so  entirely  vitiate,  that  no  judgment  can  be  given 
on  it.  1  Hale,  172,  189,  192.  For  every  offence  for  which  a  party  is  indicted  is 
supposed  to  be  prosecuted  as  an  offence  at  connnon  law,  unless  the  prosecutor, 
by  reference  to  a  statute,  shows  that  he  means  to  proceed  on  it ;  and  without 
such  express  reference,  if  it  be  no  offence  at  common  law,  the  court  will  not  look 
to  see  if  it  be  an  offence  by  statute.  Per  Lawrence,  J.,  in  Lee  v.  Clark,  2  East, 
333  ;  Doct.  Plac.  332 ;  2  Hawk.  c.  25,  s.  116  ;  R.  v.  Deacon,  R.  &  M.  N.  P.  C.  27. 
But  where  the  matter  charged  was  an  offence  at  common  law,  and  is  afterwards 
prohibited  by  statute  without  being  altered  in  degree,  as  from  misdemeanor  to 
felony,  though  the  statute  provides  some  new  corporal  or  other  punishment,  e.  g. 
for  perjury  by  5  El.  c.  ix.,  or  for  larceny  by  7  &  8  G.  IV.  c.  28,  s.  11  (Reg.  v. 
Blea,  8  C.  &  P.  735)  ;  the  omission  of  contra  formam  slatuti  will  not  wholly 
avoid  the  indictment,  but  judgment  may  pass  for  the  punishment  inflicted  in 
such  case  by  the  common  law  (2  Hale,  190,  192;  1  Chit.  C.  L.  290,  1st  ed. ; 
Arch.  C.  P.  &  Ev.  8th  ed.  55;  People  v.  Enoch,  13  Wond.  175;  State  v.  Ripley, 
2  Brevard,  382 ;  State  v.  Tim,  3  Murph.  3  ;  State  v.  Crans,  7  Gill  &  J.  290  ; 
Warner  v.  Com.,  1  Barr,  154),  a  fortiori  if  the  statute  does  not  alter  the  offence, 
though  it  defines  limits  within  which  alone  it  can  be  committed,  or  prohibits  it, 
and  the  punishment  is  only  reduced.  Reg.  v.  Polly  and  another,  C.  &  K.  77; 
Reg.  V.  Andrews,  lb.  So  it  seems,  that  under  the  provisions  of  the  New  York 
Revised  Statutes,  a  common-law  indictment  for  murder  is  proper;  but  a  defend- 
ant cannot  be  convicted  on  such  an  indictment  of  a  felonious  homicide,  with 
malice  aforethought,  unless  the  evidence  is  such  as  to  bring  the  case  within  the 
statutory  definition  of  murder.  People  v.  Enoch,  13  Wend.  159.  In  Pennsylva- 
nia, the  statutory  penalty  can  be  inflicted  after  conviction  on  an  indictment  for 
murder  at  common  law.     Com.  v.  White,  6  Binn.  183. 

^Numerous  distinctions  have  been  taken  in  the  old  books  as  to  the  proper 
conclusion  where  there  were  more  statutes  than  one  referring  to  the  offence, 
whether  it  should  be  contrary  to  the  form  of  the  statute  or  statutes ;  and  the 
English  doctrine  used  to  be  that  if  one  statute  be  relative  to  another,  as  where 
the  former  makes  the  offence  and  the  latter  adds  a  penalty,  the  indictment 
should  conclude  contra  formam  statutorum.  Westwood's  case,  2  Hale,  173. 
The  more  recent  authorities,  however,  seem  to  countenance  the  opinion  that 
in  all  cases  a  conclusion  in  the  singular  will  suffice.  Clanricarde  (Earl)  v. 
Stokes,  7  East,  520,  and  cases  cited;  1  Chit.  C.  L.  292,  n.;  Kane  v.  People,  9 
Wend.  203;  Bufman's  case,  8  Greenlcafj  113;  State  v.  Jones,  4  Halsted,  357; 
State  V.  Dayton,  3  Zabr.  49;  Bennett  v.  State,  3  Ind.  167;  Wh.  C.  L.  §412. 
If  one  statute  subjects  an  offence  to  a  pecuniary  penalty,  and  a  subsequent  stat- 
ute makes  it  a  felony,  an  indictment  for  the  felony  concluding  against  the  form 
of  the  statute  in  the  singular,  is  right  (R.  v.  Pim,  R.  &  R.  425);  though  in 
Maryland  (State  v.  Cassell,  2  H.  &  G.  470),  and  in  Indiana  (Francisco  v.  State, 
1   Carter,  179;  King  v.  State,  2  lb.  253,  though  see  Bennett  v.  State,  3  Ind. 

22 


JOINDER   OF    OFFENCES.  (2) 

167,  and  post,  80,  note  k^),  the  old  rule  was  adhered  to  where  it  appeared  that 
the  offence  was  created  by  one  statute,  and  the  punishment  defined  by  another. 
Besides  these  necessary  parts  of  the  conclusion,  it  was  formerly  usual  to  in- 
troduce others  of  mere  moral  inference,  as  "  to  the  great  displeasure  of  Al- 
mighty God,"  "  to  the  evil  example  of  all  others,"  and  "  to  the  great  dam- 
age "  of  the  party  directly  aggrieved ;  but  these  are  all  clearly  unnecessary, 
and  should  be  omitted.     Dickinson's  Q.  S.  6th  ed.  225. 

(t')  The  allegation  of  "  oath  "  is  essential ;  nor  can  the  omission  in  a  second 
count  be  supplied  by  such  allegation  in  the  first.  State  v.  McAllister,  26  Maine 
(13  Shep.),  374;  Clark  v.  State,  1  Carter  (Ind.),  253. 

(/)  (Of  the  joinder  of  offences  in  an  indictment.')  See,  under  this  head, 
Wh.  C.  L.  as  follows  :  — 

1st.  Generally,  joinder  in  one  count  of  two  distinct  offences,  is  bad,  §  381. 
2d.    Exceptions  to  the  rule,  §  383. 

(a)  Burglary  —  adultery  —  seduction,  §  383. 

(&)   Assaults  with  intent,  &c.,  §  385. 

(f)  Misdemeanors  constituent  in  felonies,  and  herein  of  how  far  the 

term  "  feloniously  "  may  be  rejected,  §  388. 
(fZ)  Where  successive  stages  in  an  offence  are  united  in  statute,  §  390. 
(e)    Double  articles  in  larceny,  §  391. 
(/)  Double  overt  acts  or  intents,  §  392. 
((/)  Double  batteries,  libels,  or  sales,  §  393. 
(h)   Surplusage,  §  394. 
3d.    How  duplicity  may  be  objected  to,  §  395. 
As  to  joinder  of  several  counts  charging  different  offences  :  — 
1st.    Where  such  joinder  is  permissible,  §  414. 
2d.    Where  an  election  will  be  compelled,  §  422. 
3d.    Advantages  of  alternative  statements  in  distinct  counts,  §  424. 
4th.  How  second  and  subsequent  counts  are  to  be  prefaced.  §  426. 
5th.  Effect  of  one  bad  count  upon  others,  and  herein  of  the  transposition 
of  counts,  §  427. 
In  point  of  lav?-,  several  offences,  which  may  be  tried  by  the  same  rules,  and 
which  have  the  same  legal  class  and  character,  i,  e.  several  felonies,  or  several 
misdemeanors,  may  be  charged  in  several  counts  in  one  indictment.     Wh.  C  L. 
§§414-27;  2  Hale,  173;   1   Chit.   C.  L.   1st  ed.  254;   State  v.  Phelps,   11  Vt. 
116  ;  Baker  v.  State,  4  Pike's  Arkansas,  56  ;  People  v.  Rynders,  12  Wend.  425  ; 
Res.  V.  Hevice,  2  Yeates,  14;  Carlton  v.  Com.,  5  Met.  532;  Kane  v.  People,  8 
Wend.  203;  Carg  v.  State,  3  Port.  186;  Com.  v.   Gillespie,   7   S.  &  R.  496; 
State  V.  AVilliams,  2  M'Cord,  301  ;  Com.  v.  Hope,  22  Pick.  1  ;  Josslyn  v.  Com.,  6 
Met.  236  ;  Cawley  v.  State,  37  Ala.  152.     Thus,  counts  for  felony  at  common 
law  may  be  joined  with  counts  for  felony  by  statute  ;  counts  for  a  felony  with 
aggravation  which  render  it  capital,  with  counts  for  a  felony  which  is  not  capi- 
tal; counts  for  riots  and  aggravated  assaults,  punishable  by  hard  labor,  with 
counts  for  common   assaults,  for  which  that  punishment  cannot  be   inflicted." 
The  rule  deduced  from  the  English  authorities  is  that  where  not  only  the  de- : 
gree,  but  the  legal  character  of  the  offence  is  different,  and  the  modes  and  inci- 

23 


(2)  JOINDER    OF    OFFENCES. 

dents  of  trial  difTer,  no  charp;e  of  felony  should  be  joined  with  a  cliargc  of 
inisdcmcanor.  The  test,  whether  different  offences  may  or  may  not  he  cliarged 
in  an  indictment,  seems  not  always  to  be  whether  the  judirineiits  or  punishments 
consequent  on  conviction  differ  or  not  (see  per  Ld.  EUenborough,  in  R.  v.  John- 
son, 3  M.  &  S.  539),  but  whether  the  nature  or  quality  of  the  offences  charged 
is  the  same  or  different,  in  other  words,  as  it  seems,  whether  one  is  a  felony  and 
the  other  a  mere  misdemeanor.  lb. ;  State  v.  Hood,  51  Maine,  3G3.  The  mod- 
ern practice  is  that  several  misdemeanors  may  be  joined  in  an  indictment, 
thouo'h  the  judgments  on  each  differ;  and  the  only  case  in  this  country  which 
distinctly  applied  a  more  rigid  practice  (Updegraph  v.  Com.,  6  S.  &  II.  5),  was 
afterwards  overruled.  Counts  for  an  assaulting  with  intent  to  ravish,  and  for 
a  common  assault  (Harman  v.  Com.,  12  S.  &  R.  476;  Buck  v.  State,  2  Har.  & 
J.  426;  State  v.  Coleman,  5  Port.  52;  State  v.  Montague,  2  M'Cord,  257;  State 
V.  Gaffney,  Rice,  431) ;  counts  for  larceny  and  for  conspiracy  to  cheat  (H(mwood 
V.  Com.,  52  Penn.  St.  R.  424)  ;  counts  for  assaulting  a  constable  and  for  assault- 
ino-  prosecutor,  stated  to  be  a  common  person  (per  Parke  J.,  in  R.  v.  Finucane  and 
another,  5  C.  &  P.  551);  for  conspiracy  and  false  pretences;  for  selling  lottery 
tickets  and  conspiracy  to  sell  the  same  (Com.  u.  Gillespie,  7  S.  &R.  469;  Com.  r. 
Sylvester,  6  P.  L.  J.  283)  ;  for  producing  abortion,  and  for  conspiracy  to  produce 
the  same  (Com.  v.  Demain,  6  P.  L.  J.  29) ;  for  false  pretences  and  forgery  at  com- 
mon law  (R.  V.  Collier,  4  C.  &  P.  160);  for  entering  closed  land  by  night,  with 
another  person,  armed  for  the  purpose  of  killing  game  (a  misdemeanor,  which  by 
9  G.  IV.  c.  64,  s.  9,  can  only  be  tried  at  the  assizes),  and  on  s.  2  for  assaulting  a 
gamekeeper  authorized  to  apprehend,  and  for  assaulting  a  gamekeeper  in  the 
execution  of  his  duty;  and  for  a  common  assault  (R.  v.  Finucane,  5  C.  &  P.  551), 
may  be  properly  joined.  And  it  is  now  no  ground,  even  in  England,  for  arrest- 
ino- judgment  after  conviction  of  felony,  that  the  indictment  contained  a  count 
for  a  misdemeanor.  R.  v.  Ferguson,  29  Eng.  Law  &  Eq.  R.  536 ;  S.  P.  State  v. 
Nelson,  14  Rich.  (S.  C)  169. 

Tn  the  United  States,  notwithstanding  the  recognition  of  the  same  line  of 
distinction  in  respect  to  challenges  and  arraignment,  which  obtains  in  England, 
the  English  doctrine  has  been  so  far  extended  as  to  admit  of  the  joinder  of 
felonies  and  misdemeanors  in  all  cases  where  the  misdemeanor  is  a  constituent 
part  of  the  felony.  Thus  an  assault  with  intent  to  ravish  requires  the  same  kind 
of  defence  as  rape  itself;  a  trial  for  the  consummated  act  involving  a  trial  for 
the  attempt ;  and  as  no  real  inconvenience  results  to  the  prisoner,  the  artificial 
difficulties  arising  from  the  difference  in  challenges  have  not  been  allowed  to  op- 
erate so  far  as  to  prevent  a  joinder  of  the  offence.  Ilarman  v.  Com.,  12  S  &  R. 
69;  Burk  v.  State,  2  liar.  &  J.  426;  State  v.  Coleman,  5  Port.  52;  State  i).  Monta- 
gue, 2  M'Cord,  257;  State  v.  Gaffney,  Rice,  431  ;  State  v.  Boise,  1  M'Mullen, 
190.  And  a  still  greater  latitude  has  been  allowed;  and  the  cases  go  to  show 
that  where  the  misdemeanor,  instead  of  being  a  constituent  part  of  the  felony, 
is  merely  a  corollary  to  it,  as  in  the  case  of  larceny  and  the  receiving  of  stolen 
goods,  the  two  offences  may  be  coupled.  Wh.  C.  L.  §§  414-27.  And  so  with  the 
joinder  of  counts  with  conspiracy  with  counts  for  the  overt  act.     AVh.  C.  L.  §  415. 

Though  on  the  face  of  an  indictment  every  count  should  import  to  charge  a 

24 


JOINDER   OF    OFFENCES.  (2) 

different  oflence  (3  T.  R.  106),  the  words  "^/je  said"  as  applied  to  a  prosecutrix 
in  a  second  or  subsequent  count,  merely  asserting  her  to  be  the  same  person  as 
was  mentioned  in  the  prior  count,  without  reasserting  her  particular  character 
or  age  there  stated  :  e.  g.  that  she  was  a  female  child  aged  between  ten  and 
twelve  (R.  v.  Martin,  9  C.  &  P.  213),  whether  founded  on  the  same  or  different 
facts ;  yet  in  practice  the  use  made  of  the  legal  right  to  join  several  charges  of 
felony,  is  commonly  no  other  than  the  charging  the  same  offence  in  different 
counts  of  the  same  indictment  in  different  ways,  to  meet  the  several  aspects 
which  it  is  apprehended  the  case  may  assume  in  evidence,  or  in  which  it  may 
be  regarded  in  point  of  law  by  the  court :  e.  g.  where  it  is  doubted  Avhether  the 
goods  stolen,  or  the  house  in  which  a  larceny  was  committed,  belong  to  or  is  oc- 
cupied by  A.  or  B.,  one  count_may  state  the  goods,  &c.,  as  A.'s,  and  a  second  as 
B.'s.  R.  V.  Eggington,  2  B.  &  P.  508.  So  the  same  act,  e.  g.  burglary,  may  be 
laid  in  ditFerent  counts  to  have  been  done  with  intent  to  steal  and  to  murder. 
R.  V.  Thompson,  2  East,  P.  C.  515  ;  Josslyn  v.  Com.,  6  Met.  236.  Even  where 
six  distinct  houses  in  the  same  row  were  burned  down,  it  was  held  that  each 
house  might  be  the  subject  of  a  distinct  count  in  a  joint  indictment  (R.  v.  True- 
man,  8  C.  &  P.  727);  and  in  Massachusetts  there  is  no  hesitancy  in  including  in 
the  same  indictment  counts  for  the  several  subdivisions  into  which  the  chief 
common  law  felonies  are  there  divided.  Com.  v.  Hope,  22  Pick.  1.  But  in 
felony,  if  charges  requiring  an  essentially  different  state  of  fact  to  support  them, 
though  referring  to  the  same  transaction,  be  joined,  as  a  count  for  robbing  with 
a  count  for  assaulting  with  intent  to  rob,  the  English  courts  generally  compel  the 
prosecutor  to  make  an  election  (R.  v.  Gough,  1  M.  &  Rob.  71);  though  here  such 
rigor  is  not  exercised,  and  the  power  of  election  as  to  which  of  the  two  stages 
of  the  defence  the  defendant  is  guilty  of,  is  reserved  to  the  jury. 

In  cases  of  misdemeanor  the  books  in  both  countries  agree  that  while  differ- 
ent counts  may  be  introduced  applicable  to  the  same  facts  as  in  case  of  felony, 
no  objection  can  be  made  in  any  Avaj^  even  to  the  joinder  of  counts  applicable 
to  different /ac/.s\  so  that  the  legal  character  of  the  substantive  offences  charged 
be  the  same.  Per  Ld.  Ellenborough,  in  R.  v.  Jones,  2  Campb.  13.  So  conspir- 
acy, and  charges  of  other  misdemeanors,  may  be  joined.  R.  v.  Johnson,  3  M.  & 
S.  539;  Kane  v.  People,  Wend.  203;  State  v.  Rooby,  3  Harring.  561  ;  State  v. 
Haney,  2  Dev.  &  Bat.  390;  U.  S.  v.  Dickinson,  2  M'Lean,  325.  Thus  it  is  the 
constant  practice  to  receive  evidence  of  several  assaults  or  libels  on  the  several 
counts  of  the  same  indictment,  and,  on  the  other  hand,  an  indictment  for  an 
assault  by  one  or  more  on  several  is  valid,  though  an  award  of  a  joint  fine  would 
be  bad,  and  the  parties  assaulted  could  not  join  in  an  action,  where  each  person 
injured  is  to  recover  separate  damages.  See  dictum  of  Ed.  Mansfield  in  R.  v. 
Benfield  and  Saunders,  2  Burr.  R.  980,  984  ;  2  Hawk.  c.  25,  s.  89,  denying  R.  v. 
Clendon,  2  Strange,  870;  Ld.  Raym.  1572.     See  in  full,  Wh.  C.  L.  §§  414-27. 

25 


(3)  COMMENCEMENTS   AND   CONCLUSIONS 


CHAPTER  III. 

COMMENCEMENTS  AND    CONCLUSIONS   IN   THE  FEDERAL  AND 
STATE  COUETS.(a) 

I.    FEDERAL    COURTS.(Z/) 

(3)    Commencement  in  Bhtrict  of  Massachusetts^  where  the  offence 
was  committed  on  hoard  of  an  American  vessel  within  the 
jurisdiction  of  a  foreign  state. 
United  States  of  America. 

District(c)  of  Massachusetts,  to  wit  [stating  the  court). 
Tiie  jurors  of  the  United  States  of  America,  within  and  for  the 
(a)  On  tlie  question  as  to  the  courts  in  which  indictments  are  to  be  brought, 
see  Wh.  C.  L.  as  follows  :  — 

I.  Of  what  Offences  the  Federal  Judiciary  has  cognizance,  §  15G. 

1st.  What  federal  judicial  powers  the  constitution  creates,  §  157. 
2d.  How  far  the  federal  courts  have  a  common  law  power,  §  163. 
3d.    What  is  the  statutory  jurisdiction  of  the  federal  courts,  §  1 74. 

(a)  Offences  against  the  law  of  nations,  §  175. 

(h)   Offences  against  federal  sovereignty,  §  176. 

(r)   Offences  against  the  persons  of  individuals,  §  177. 

(f/)  Offences  against  property,  §  178. 

(e)  Offences  against  public  justice,  §  179. 

II.  In  what  Courts  Offences  cognizable  by  the  United  Stales,  are  to  be  tried,  §  182. 

1st.   When  the  state  and  the  federal  courts  have  concurrent  jurisdiction, 

§181. 
2d.    Jurisdiction  as  to  Habeas  Corpus,  §  195. 
3d.    Criminal  Jurisdiction  of  the  Senate,  §  198. 
4th.   Criminal  Jurisdiction  of  the  Supreme  Court,  §  199. 

(a)   Original,  §  200. 

(6)  Appellate  from  Circuit  Court,  §  201. 

(c)  Appellate  from  District  Court,  §  202. 

(d)  Appellate  from  Circuit  Court  for  the  District  of  Columbia,  §  203. 
(c)   Appellate  from  the  Territorial  Courts,  §  204. 

(f)  Appellate  from  the  highest  State  Courts,  §  205. 
((/)  Jurisdiction  of  Circuit  and  District  Courts,  §  208. 
(/j)  Jurisdiction  of  Territorial  Courts,  §  210. 

(6)  Tlio  criminal  pleading  of  the  United  States  courts,  like  the  civil  plead- 
ing, is  governed,  under  the  direction  of  the  act  of  1 788,  by  the  practice  of  the . 
States  in  which  the  particular  courts  are  situated.     This  is  illustrated  by  the 
forms  of  commencements  and  conclusions  given  in  the  text. 

(c)  The  district  must  be  set  forth  according  to  its  jurisdiction,  as  settled  by 

26 


IN  THE  FEDERAL  AND  STATE  COURTS.  (5) 

district  aforesaid,  upon  their  oath  present  that  A.  B.,  late  of  Bos- 
ton, in  said  district,  mariner,  on  ^  S&c.  {staling  date),*  \\\  and  on 
board  of  the  barque  Eliza,  then  lying  within  the  jurisdiction  of  a 
foreign  state  or  sovereign,  to  wit,  at  one  of  the  islands  called  the 
Navigator's  Island,  in  the  South  Pacific,  the  said  barque  then 
and  there  being  a  ship  or  vessel  of  the  United  States,  belonging((i) 
to  certain  citizens  of  the  United  States,  whose  names  are  to  this 
inquest  unknown,  &c. 

(4)  Same  ivhere  the  offence  was  committed  on  an  American  ship 

within  the  jurisdiction  of  the  United  States. 

Same  as  above  down  to  mark*,  and  then  proceed:  on  the  waters 
of  Long  Island  Sound,  the  same  being  an  arm  of  the  sea,  within 
the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
and  out  of  the  jurisdiction  of  any  particular  State,  in  and  on 
board  of  the  steamer  M.,  the  same  then  and  there  being  an 
American  ship  or  vessel,  &c. 

(5)  Same  where  the  offence  was  committed  07i  the  high  seas  on  board 

of  an  American  vessel. 

Same  as  above  down  to  mark  *,  and  then  proceed :  upon  the 
high  seas  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States,  and  out  of  the  jurisdiction  of  any  particular  State, 
and  within  the  jurisdiction  of  this  court,  on  board  of  a  certain 
vessel,  to  wit,  a  schooner  called  the  William  Wirt,  then  and 
there  belonging  to  a  citizen  or  citizens  of  the  United  States  to 
the  said  inquest  unknown,  of  which  said  vessel  a  certain  J.  S.  S. 
was  then  and  there  master,  &c. 

act  of  Congress.  Thus  where  an  indictment  in  the  Circuit  Court  for  the  East- 
ern District  of  Pennsylvania,  commenced  "  in  the  Circuit  Court  of  the  United 
States,  &c.,  in  and  for  the  District  of  Pennsylvania,"  Judge  Washington  held 
that  it  should  appear  by  the  record  that  the  jury  were  sworn  to  inquire  for  the 
district  over  which  the  court  had  jurisdiction  ;  and  as  by  the  act  of  20th  April, 
1818,  Pennsylvania  was  divided  into  two  districts,  and  as  the  court  in  which 
the  indictment  was  found  had  only  jurisdiction  over  one  of  these  districts,  the 
judgment  would  have  to  be  arrested.     U.  S.  v.  Wood,  2  Wheel.  C.  C.  325. 

(d)  In  several  of  the  precedents  the  words  "  in  whole  or  in  part "  are  here 
introduced,  but  this  alternative  expression  is  questionable. 

27 


(9)  COMMENCEMENTS    AND    CONCLUSIONS 

(6)  Same  where  offence  was  committed  on  high  seas  on  hoard  a  vessel 
whose  name  was  unknown,  belonging  to  an  American  citizen  whose 
name  is  given. 

Same  as  above  down  to  *,  and  then  proceed .  upon  the  high  seas 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  out  of  the  jurisdiction  of  any  particular  State,  and 
within  the  jurisdiction  of  this  court,  on  board  of  a  certain  vessel, 
to  wit,  a  vessel  the  name  whereof  is  to  the  jurors  unknown,  then 
and  there  belonging  to  a  citizen  of  the  United  States,  to  wit,  one 
J.  P.  V,,  late  of  the  district  aforesaid,  &c. 

(7)  Same  where  offence  was  committed  by  a  person  who  belonged  to  a 
vessel  oivned  by  American  citizens^  whose  names  are  known,  the  ves- 
sel being  at  the  time  in  the  jurisdiction  of  a  foreign  State. 

Same  as  above  down  to*,  and  then  proceed :  within  the  admi- 
ralty and  maritime  jurisdiction  of  the  United  States,  on  board  of 
a  certain  vessel,  to  wit,  a  sloop  called  the  C.  W.,  then  and  there 
belonging  to  S.  P.  W.,  J.  C.  B.,  and  N.  F.,  citizens  of  the  United 
States,  while  lying  in  a  place,  to  wit,  Great  Harbor  in  Long 
Island,  one  of  the  Bahama  Islands  within  the  jurisdiction  of  a 
certain  foreign  sovereign,  to  wit,  the  king  of  the  United  King- 
dom of  Great  Britain  and  Ireland,  a  certain  J.  P.  M.,  late  of  the 
district  aforesaid,  mariner,  then  and  there  being  a  person  belong- 
ing to  the  company  of  the  said  vessel,  did,  &c. 

(8)  Same  where  offence  ivas  committed  in  navy  yard. 

Same  as  above  down  to  *,  and  then  proceed :  at  and  within  the 
navy  yard  adjoining  the  in  the  county  of  in  the 

district  of  aforesaid,  the  site  of  which  said  navy  yard  had 

been,   before   the   said  day   of  in   the   year  last 

aforesaid,  ceded  to  the  said  United  States,  and  was  on  the  said 
last-mentioned  day  then  and  there  under  the  sole  and  exclusive 
jurisdiction  of  the  said  United  States,  &c. 

(9)  Same  where  offence  was  committed  on  ground  occupied  for  an 
armory  or  arsenal. 

Same  as  above  down  to  *,  and  then  proceed :  at  the  said  town 
of  Springfield,  on  land  belonging  to  the  said  United  States,  to 
28 


IN  THE  FEDERAL  AND  STATE  COURTS.  (13) 

wit,  on  land  occupied  for  an  armory  or  arsenal,  and  for  purposes 
connected  therewith,  out  of  the  jurisdiction  of  any  particular 
State  of  the  said  United  States,  and  within  the  jurisdiction  of 
the  said  United  States,  &c. 

(10)    Commencement  in  Southern  District  of  New  York. 

Southern  District  of  New  York,  ss.  The  jurors  of  the  United 
States  of  America,  in  and  for  the  district  aforesaid,  on  their 
oath  present  that  A.  B.,  late  of  the  City  and  County  of  New 
York,  in  the  district  aforesaid,  heretofore  did,  &c.  (stating-  the 
date,  and  'proceeding  as  in  foregoing  forms). 

(11)    Commencement  in  Eastern  District  of  Pennsylvania. 

In  the  Circuit  {or  District)  Court  of  the  United  States  in  and 
for  the  Eastern  District  of  Pennsylvania,  of  Sessions,  in 

the  year  of  our  Lord,  &c. 

Eastern  District  of  Pennsylvania,  ss.  The  grand  inquest  of 
the  United  States  of  America,  inquiring  for  the  Eastern  District 
of  Pennsylvania,  on  their  oaths  and  affirmations  respectively,  do 
present  that  A.  W.  H.,  late  of  the  district  aforesaid,  mariner,  on 
the  (stating  date,  and  proceeding  as  in  foregoing  counts). 

(12)  Commencement  in  District  of  Virginia. 

In  the  Circuit  (or  District)  Court  of  the  United  States  in  and 
for  the  Virginia  District,  of,  &c.  (as  in  last  form). 

The  grand  inquest  of  the  United  States  of  America,  for  the 
Virginia  District,  upon  their  oath  do  present  that  A.  B.,  late  of 
the  State  of  New  York  and  City  of  New  York,  attorney  at  law, 
on,  &c.,  (stating  the  date,  and  proceeding  as  in  foregoing  counts.) 

(13)  Conclusion  in  District  of  Massachusetts. 

Against  the  peace  and  dignity  (d^)  of  the  said  United  States, 
and  contrary  to  the  form  of  the  statute  of  the  United  States  in 
such  case  made  and  provided. (</-) 

((/I)  But  see  U.  S.  v.  Boling,  4  Cranch,  C.  C.  R.  57D,  where  it  was  held  that 
the  conclusion  should  be  against  the  "  government "  of  the  United  States. 

(f/2)  U.  S.  V.  La  Coste,  2  Mason,  129 ;  U.  S.  v.  Smith,  2  Mason,  143  ;  but  see 
U.  S.  V.  Crittenden,  1  Hemp.  61.  Indictments  in  the  United  States  adapt 
tliemselves   in  their   conclusion,  as    well    as    their   other  formal  parts,  to  the 

29 


(17)  COMMENCEMENTS   AND    CONCLUSIONS 

(14)    Conclusion  in  Southern  District  of  New  York. 
Against  the  peace  of  the  said  United  States  of  America  and 
their  dignity,  and   against  the  form   of  the  statute  of  the  said 
United  States  in  such  case  made  and  provided. 

(15)    Conclusion  in  Eastern  District  of  Pennsylvania. 

Contrary  to  the  form  of  the  act  of  Congress  in  such  case  made 
and  provided,  and  against  the  peace  and  dignity  of  the  United 
States. 

(16)    Conclusion  in  District  of  Virginia. 

Against  the  cotistitution,  peace,  and  dignity  of  the  said  United 
States,  and  against  the  form  of  the  act  of  the  Congress  of  the 
said  United  States  in  such  case  made  and  provided. (e) 

[Where  the  offence  was  committed  within  the  admiralty  and  mari- 
time jurisdiction  of  the  United  States,  jurisdiction  over  the  offender 
attaches  to  the  particular  district  to  which  he  was  brought,  or  in  which 
he  was  apprehended.  la  order  to  show  jurisdiction,  it  is  necessary  for 
the  grand  jury  to  find  an  additional  count  in  all  such  cases.,  as  fol- 
lows :'\ 

(17)  Final  count  where  the  offender  was  first  apprehended  in  the  par- 
ticular district. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid  [or  in  Penn- 
sylvania, on  their  oaths  and  affirmations  aforesaid),  do  further  pre- 
sent, that  the  district  of  in  the  circuit  is  the 
district  and  circuit  in  which  the  said  was  first  apprehended 
for  the  said  offence.(/) 

practice  of  the  courts  of  the  States  within  whose  territorial  limits  they  are  found, 
always  retaining  the  contra  formam  statuti  as  well  as  the  contra  pacei7i,  there 
being  no  common  law  offences  against  the  United  States. 

(e)  The  form  in  the  text  is  taken  from  Burr's  case. 

(/)  See  under  the  heads  of  piracy,  &c.,  the  several  methods  used  of  stating 
the  jurisdiction  in  the  respective  circuits.  The  one  in  the  text  is  that  used  in 
New  York,  and  in  connection  Avith  that  following  it,  appears  to  me  to  be  the 
most  formal.  In  some  of  the  forms  in  the  last-named  circuit  the  concluding 
averment  is,  "  was  first  brought  and  apprehended." 

30 


IN    THE    FEDERAL    AND    STATE    COURTS.  (23) 

(18)  Final  count  where  the  offender  was  first  brought  into  the  partic- 
ular district. 
And  the  jurors  aforesaid,  on  their  oath  aforesaid  {or  in  Penn- 
sylvania, on  their  oaths  and   affirmations  aforesaid),  do  further 
present,  that  the  district  of  in  the  circuit  is  the 

district  and  circuit  into  which  the  said  was  first  brought  for 

the  said  offence. (/i) 

II.    STATE  COURTS. 

(19)  3Iaine.     Commencement. 

State  of  Maine,  Kennebec,  to  wit: 

At  the  court,  &c.,  begun,  &c.  {stating  style  of  court),  the  jurors 
for  the  State  of  Maine  upon  their  oath  do  present  that,  &c. 

(20)    Conclusion  at  common  law. 
Against  the  peace  of  the  said  State.(^) 

(21)  For  a  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  (or  peace  and  dignity)  of  the 
said  State. 

(22)  New  Hampshire.     Commencement. 

State  of  New  Hampshire,  ss. 

At  the  Court  of  Common  Pleas  holden  at  within  and  for 

the  County  of  aforesaid,  on  the  Tuesday  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and  forty 
the  jurors  of  the  State  of  New  Hampshire,  upon  their  oath,  pre- 
sent, &c. 

(23)  Conclusion  for  a  common-law  offence. 

Against  the  peace  and  dignity  of  the  State. (7i) 

(yi)  See  post,  181,  239,  note,  for  important  observations  upon  this  class  of  con- 
clusions. 

(7)  Browne's  case,  1  Greenl.  177;  State  v.  Soule,  20  Maine  R.  19;  Bufman's 
case,  8  Greenl.  113. 

(^)  The  conclusion,  "  against  the  peace  and  dignitj'  of  our  said  State,"  suffi- 
ciently complies  with  the  constitutional  provision  that  the  conclusion  shall  be 
•'  against  the  peace  and  dignity  of  the  State."    State  v.  Kean,  ION.  Hamp.  347. 

31 


^25)  gOMMENCEMENTS    AND    CONCLUSIONS 

(24)  For  a  statutory  offence. 
Contrary  to  the  form  of  the  statute  in  such  case  made  and  pro. 
vided,  and  against  the  peace  and  dignity  of  the  State. (i) 

(25)    Vermont.      Commeneement. 

State  of  Vermont.     Windsor  County,  ss. 

The  grand  jurors  within  and  for  the  body  of  the  County  of 
Windsor  aforesaid,  now  here  in  court  duly  empanelled  and 
sworn,  upon  their  oath  present,  &c.(y) 

(?)   Information. 

State  of  New  Hampshire,  ss. 

At  the  Court  ol'  Common  Fleas  holden  at  on  the         Tuesday  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty-  .  Be  it  re- 
membered that  Lyman  B.  Walker,  Esquire,  Attorney-General  for  the  State  afore- 
said, being  here  in  court,  gives  the  court  to  understand  and  be  informed,  that, 
&c.  {staling  offence),  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  said  State.  Whereupon  the 
said  attorney-general  prays  advice  of  the  court  in  the  premises,  and  that  due 
process  of  law  may  issue  against  the  said  in  this  behalf,  to  answer  to  the 

said  State  in  the  premises,  and  to  do  therein  what  to  law  and  justice  may  apper- 
tain. 

(j)  This,  as  I  am  informed  by  Mr.  Washburn,  the  learned  reporter  of  the  de- 
cisions of  the  Supreme  Court,  is  the  usual  form  ;  but  in  a  recent  case,  of  which  he 
has  kindly  furnished  me  with  the  sheets,  an  indictment  was  sustained,  beginning, 
"  State  of  Vermont,  Chittenden  County,  ss.  The  grand  jurors  for  the  people 
of  the  State  of  Termont  upon  their  oath  present  that,"  &c.  State  v.  Nixon,  18 
Vt.  (3  Wash.)  70. 

"  To  the  indictment  itself,"  said  Williams,  C.  J.,  in  an  opinion  which  throws 
great  light  on  this  branch  of  jjleading,  "  the  first  objection  urged  is,  that  it  com- 
mences, '  The  grand  jurors  for  the  people  of  the  State  of  Vermont.'  This  is 
not  the  usual  form  of  the  commencement  of  indictments  in  this  State ;  but,  nev- 
ertheless, it  may  be  questioned  whether  it  is  not  more  correct  than  the  one  com- 
monly used.  The  grand  jurors  in  this  State,  as  well  as  in  Great  Britain,  are  to 
inquire  for  all  oircnces  in  the  county  for  which  they  are  returned.  2  Hawk.  P. 
C.  c.  25,  p.  299.  They  are  to  present  in  behalf  of  and  for  the  sovereign  power, 
which  is  considered  as  the  prosecutor  for  all  public  otfences  ;  and  hence  the  style 
or  language  of  the  indictment  is  not  uniform.  In  England,  the  form  is,  '  The 
grand  jurors  yor  our  Lord  the  King  on  their  oath  present;'  in  New  York,  ^/or 
the  people,'  &c.;  in  Massachusetts,  'for  the  Commonwealth.'  In  some  cases  thia 
part  of  the  intlictment  is  used  only  to  designate  the  jury,  who  present  as  'Tlie 
grand  inquest  of  the  United  States  for  the  district  of  Virginia,'  'The  grand  ju- 
rors of  the  United  States  in  and  for  the  body  of  the  district  of  New  York,'  '  The 
grand  jurors  within  and  for  the  body  of  the  county,'  &c. ;  and  this  latter  is  the 

32 


IN  THE  FEDERAL  AND  STATE  COURTS.  (28) 

(26)    Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State.(7(;) 

(27)    Conclusion  for  statutory  offence. 

Contrary  to  the  form,  force,  and  effect  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity  of  the 
State. 

(28)  Massachusetts.      Commencement,  (/c^) 

Commonwealth  of  Massachusetts.     Suffolk,  to  wit: 

At  the  Supreme  Judicial(Z)  Court  of  said  Commonwealth   of 

Massachusetts,  begun  and  holden  at  Boston,  within  and  for  the 

County  of  Suffolk,  on  the  first  Monday  of  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  forty 

The  jurors  for  the  Commonwealth  of  Massachusetts  upon  their 

oath  present,  &c. 

form  usually  adopted  in  this  State  and  in  Connecticut.  The  better  form,  I  think, 
is  the  one  used  in  Georgia,  found  in  6  Peters,  528 :  '  The  grand  jurors  sworn, 
chosen,  and  selected  for  the  county  of  in  the  name  and  behalf  of  the 

citizens  of  Georgia.' 

"  In  this  State,  when  we  wish  to  designate  the  sovereign  power,  we  usually 
say,  The  State  of  Vermont ;  but  I  apprehend  it  is  as  well  to  designate  it  by  the 
term  The  People.  Proceedings  to  take  the  forfeiture  of  grants  and  charters 
were  heretofore  directed  to  be  prosecuted  in  the  name  of  The  People  of  the 
State ;  Slade's  St.  189 ;  and,  moreover,  in  making  a  record  of  a  case  arising  on 
an  indictment  by  a  grand  jury,  these  words  might  be  wholly  omitted ;  and,  after 
the  caption,  which  sets  forth  that  the  grand  jury  were  empanelled,  &c.,  it  would 
be  sufficient  to  say  that  it  is  presented  '  that  A.  B.,'  &c.  We  cannot,  therefore, 
attach  any  importance  to  this  objection  to  the  indictment,  considering  it  wholly 
immaterial  whether  the  indictment  commenced  by  saying,  the  grand  j  tutors  for 
the  county,  or  for  the  State,  or  for  the  people  of  the  State ;  and  that  either  mode 
would  be  conformable  to  approved  forms."  State  v.  Nixon,  18  Vt.  70.  See  also 
State  V.  Hooker,  17  Vt.  659. 

{k)  By  the  constitution  of  Vermont  all  indictments  must  conclude,  "  against 
the  peace  and  dignity  of  the  State  ;"  sect.  32,  part  ii.  In  a  common  law  offence, 
the  conclusion  "  contra  formam  "  is  to  be  rejected  as  surplusage.  State  v.  Phelps, 
11  Vt.  R.  118. 

{B)   See  Com.  v.  Fisher,  7  Gray,  492. 

{I)  At  Boston :  "  At  the  Municipal  Court  of  the  City  of  Boston,  begun  and 
holden  at  said  Boston." 

VOL.  T.-3  ,       33 


(33)  COMMENCEMENTS   AND    CONCLUSIONS 

(29)    Conclusion  for  a  common  law  offence. 
Against  the  peace  of  said  Commonwealth. 

(30)  For  a  statutory  offence. 

Against  the  peace  of  said  Commonwealth,  and  the  form  of  the 
statute  in  such  case  made  and  provided. (m) 

(31)    Connecticut.      Commence7nent. 

State  of  Connecticut,  &c.     New  Haven  County,  ss. 

New  Haven,  day  of 

184  . 

To  the  Honorable  Superior  Court  of  the  State  of  Connecticut 
now  sitting  in  within  and  for  the  County  of  on 

the  Tuesday  of 

The  grand  jurors  within  and  for  said  county,  on  their  oaths 
present  and  inform,  &c. 

(32)    Conclusion. 
Against  the  peace  and  contrary  to  the  statute  in  such  case 
made  and  provided. (w) 

(33)  Information  hy  attorney  for  the  State. 

State  of  Connecticut.     County  of  New  Haven,  ss. 
County  court,  November  term,  one  thousand  eight  hundred  and 
forty-five. 

Dennis  Kimberly,  attorney  to  the  State  of  Connecticut,  for  the 

(m)  "  Against  the  peace  and  the  statute  "  has  in  Massachusetts  been  held  to 
be  sufficiently  formal  (Com.  v.  Caldwell,  14  Mass.  330)  ;  though  "against  the  law 
in  such  case  made  and  provided,"  has  been  held  to  be  too  general.  Com,  v. 
Stockbridge,  11  Mass.  279.  The  object  of  the  conclusion  "against  the  statute" 
is  to  notify  the  defendant  that  the  offence  of  which  he  is  accused,  and  the  pen- 
alty to  which  he  may  be  subjected,  are  statutory,  and  not  as  at  common  law. 
Com.  V.  Stockbridge,  11  Mass.  279;  Com.  v.  Northampton,  2  Mass.  116;  Com.  v. 
Springfield,  7  Mass.  9  ;  Com.  v.  Cooley,  10  Pick.  37.  The  phrase  "  against  the 
peace  of  the  Commonwealth  "  is  a  pi-oper  conclusion  for  an  offence  at  common 
law.  Com.  i;.  Buckingham,  2  Wheel.  C.  C.  182.  The  statutory  termination, 
when  unnecessary,  may  be  treated  as  surplusage.     Com.  v.  Hoxey,  16  Mass.  385. 

(n)  The  statutory  conclusion  can  be  rejected  as  surplusage,  if  necessary,  and 
judgment  given  at  common  law.  Knowles  v.  State,  3  Day,  103;  Swift's  Digest, 
684,  685 ;  Southworth  v.  State,  9  Conn.  560. 

34 


IN    THE    FEDERAL    AND    STATE    COURTS.  (38) 

County  of  New  Haven,  now  here  in  court,  information  makes 
that,  &c.  (statinfjf  the  offence). 

Against  the  peace  and  contrary  to  the  statute  in  such  case 
made  and  provided.  Whereupon  the  attorney  prays  the  advice 
of  this  honorable  court  in  the  premises. 

(34)  Information  hy  grand  jm'or. 

State  of  Connecticut.     County  of  New  Haven,  ss. 

To  justice    of  the    peace  for  said   county,  residing  in 

said  town  {or  as  in  last  form),  comes  a  grand  juror  for  said 
town,  and  on  his  oath  of  office  information  makes,  that  at  said 
New  Haven  on  the  day  of  184  ,  &c.  {stating  the  offence), 

against  the  peace,  and  contrary  to  the  statute  in  such  case  made 
and  provided.  Wherefore  the  grand  juror  aforesaid  prays  pro- 
cess, and  that  the  said  may  be  arrested  and  held  to  answer 
the  complaint,  and  be  dealt  with  according  to  law.  Dated  at 
New  Haven  the  day  and  year  first  aforesaid. 

(35)  Rhode  Island.      Commencement. 

State  of  Rhode  Island  and  Providence  Plantations.  Provi- 
dence, ss. 

At  the  Supreme  Judicial  Court  of  the  State  of  Rhode  Island 
and  Providence  Plantations,  holden  at  Providence,  within  and  for 
the  County  of  Providence,  on  the  third  Monday  of  September, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty. 

The  grand  jurors  of  the  State  of  Rhode  Island  and  Providence 
Plantations,  and  in  and  for  the  body  of  the  County  of  Provi- 
dence, upon  their  oaths  present,  that,  &c. 

(36)    Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State. 

(37)    Conclusion  for  statutory  offence. 

Against  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  State. 

(38)  New  York.      Commencement. 

City  and  County  of  New  York,  ss. 

The  jurors  of  the  people  of  the  State  of  New  York,  in  and  for 

35 


(^44)  COMMENCEMENTS   AND    CONCLUSIONS 

the  body  of  the  City  and  County  of  New  York,  upon  their  oath 
present,  that,  &c. 

(39)    Conclusion  for  common  law  offence. 
Against  the  peace  of  the  people  of  the  State  of  New  York, 
and  their  dignity.(o) 

(40)    Conclusion  for  statutory  offence. 

Against  the  form  of  the  statute  in  such  case  made  and  pro- 
vided,(p)  and  against  the  peace  of  the  people  of  New  York  and 
their  dignity. 

(41)  JVeiv  Jersey.      Commencement. 

In  the  Court,  &c.,(<7)  County,  to  wit : 

The  grand  inquest  for  the  State  of  New  Jersey,  and  for  the 
body  of  the  County  of  upon  their  present,  that,  &c. 

(42)    Conclusion  for  common  laiv  offence. 

Against  the  peace  of  this  State,  the  government  and  dignity  of 

the  same. 

(43)    Conclusion  for  statutory  offence. 

Contrary  to  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  of  this  State,  the  government  and  dignity  of 
the  same. 

(44)  Pennsylvania.      Commencement. 
In  the  Court  of  for  the  County  of 

Session,  184  . 
The  grand  inquest  of    the   Commonwealth   of  Pennsylvania, 

(o)  See  Rev.  Stat,  part  4,  c.  2,  s.  51, 

See  People  v.  Enoch,  13  Wend.  159,  per  Walworth,  Chancellor;  People  v. 
M'Kinnon,  1  Wheelei''s  C.  C.  170.  The  only  case  in  which  the  statutory  con- 
clusion appears  to  be  omitted  in  New  York  is  assault  and  battery,  and  in  fact, 
as  when  unnecessary  it  is  merely  surplusage,  it  is  better  to  always  include  it. 

(/))  Against  the  form  of  the  statute  is  sufficient,  though  the  offence  be  pro- 
hibited by  more  than  one  statute.  Kane  v.  People,  f)  Wend.  203.  By  2  Rev. 
Stat.  p.  728,  error  in  stating  the  conclusion  is  not  tatal. 

(jq)  The  court  should  appear  in  the  margin,  so  that  the  indictment  may  carry 
jurisdiction,  though  if  it  appear  in  the  caption  when  the  case  goes  up  on  error, 
it  is  enough.     State  v.  Zule,  5  Halst.  348. 

36 


IN   THE    FEDERAL    AND    STATE    COURTS.  (49) 

inquiring  for  the  upon  their  oaths  and  affirmations  respec- 

tively do  present,  &c. 

(45)    Conclusion  for  common  law  offence. 

Against  the  peace  and  dignity  of  the  Commonwealth  of  Penn- 
sylvania.{r) 

(46)    Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  act  of  assembly  in  such  case 
made  and  provided, (5)  and  against  the  peace  and  dignity  of  the 
Commonwealth  of  Pennsylvania. 

(47)  Delaware.     Commencement. 

October  Term,  1836.     Kent  County,  ss. 

The  grand  inquest  for  the  State  of  Delaware  and  the  body  of 
Kent  County,  on  their  oath  and  affirmation  respectively,  do 
present,  &c. 

(48)    Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State. 

(49)    Conclusion  for  statutory  offe?ice. 
Against  the  form  of  the  act  of  the  general  assembly  in  such 

(/■)  By  the  constitution,  all  prosecutions  have  to  be  carried  on  in  the  name 
and  by  the  authority  of  the  Commonwealth  of  Pennsylvania,  and  conclude 
"  against  the  peace  and  dignity  of  the  same."  Art.  v.  s.  11.  The  proper  conclu- 
sion is,  "against  the  peace  and  dignity  of  the  Commonwealth  of  Pennsylvania." 
Com.  V.  Rogers,  5  S.  &  R.  4G3. 

(s)  See  Warner  v.  Com.,  1  Barr,  154;  Com.  v.  Searle,  3  Binn.  332;  Russel  v. 
Com.,  7  S.  &  R.  489;  White  v.  Com.,  6  Binn.  179;  Chapman  v.  Com.,  5  Wh. 
427.  Where,  however,  to  a  common-law  offence  there  is  a  penalty  attached, 
but  the  offence  continues  unchanged,  the  conclusion  '■'■  contra  formam"  &c.,  need 
not  be  inserted ;  and  this  is  even  the  case  in  an  indictment  for  murder,  though 
the  common  law  offence  is  here  divided  into  two  partitions.  \Vhite  v.  Com.,  6 
Binn.  179. 

When  the  termination  "  against  the  act,"  &c.,  is  regularly  inserted  in  a  com- 
mon law  indictment,  the  courts  will  always  regard  it  as  surplusage.  Pa.  v.  Bell, 
Add.  171 ;  Res.  v.  Newell,  3  Yeates,  407. 

37 


(55)  COMMENCEMENTS    AND    CONCLUSIONS 

case    made    and    provided,(^)  against  the  peace  and  dignity  of 
the  State.(w) 

(50)  Maryland.     Commencement. 

Washington  County,  ss. 

The  jurors  of  the  State  of  Maryland  for  the  body  of  Wash- 
ington County,  on  their  oath  present,  &c. 

(51)    Conclusion  for  common  law  offence. 
Against  the  peace,  dignity,  and  government  of  the  State. 

(52)    Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  act  of  assembly  in  such  cases 
made  and  provided, (?;)  and  against  the  peace,  dignity,  and  gov- 
ernment of  the  State. 

(53)  Virginia.      Commencement. 

Virginia,  Lewis  County,  to  wit : 

The  jurors  for  the  Commonwealth  of  Virginia  in  and  for  the 
body  of  the  County  of  Lewis,  upon  their  oath  present,  &c. 

(54)    Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  Common  wealth,  (■y^) 

(55)    Conclusion  for  statutory  offence. 
Contrary  to  the  form  of  the  statute  in  that  case  made  and  pro- 

(/)  "  Against  the  foi-m  of  the  acts"  ^c,  will  not  be  vicious  though  only  one 
act  prohibits  the  offence.     Townley  v.  State,  3  Harring.  377. 

The  statutory  conclusion  can  always  be  rejected  as  surplusage.  State  v. 
Craidly,  3  Harring.  108. 

(u)   See  State  v.  Whaley,  2  Harring.  538. 

{v)  State  V.  Negro  Jesse,  7  Gill  &  J.  290.  Wliere  the  punishment  is  pre- 
scribed by  one  act,  and  the  offence  prohibited  by  another,  it  is  said  the  conclu- 
sion should  be  "  against  the  acts"  (State  v.  Cassal,  2  Harr.  &  Gill,  407)  ;  though 
the  weight  of  authority  is  now  the  other  way.  Wh.  C.  L.  §  412.  It  seems,  also, 
that  when  there  is  but  an  "  act,"  the  conclusion  against  the  "  acts  "  is  of  doubt- 
ful propriety.     State  v.  Cassal,  2  Harr.  &  Gill,  407.     See  ante,  2,  n.  (Jc). 

(wl)  To  omit  this  is  fatal.     Com.  v.  Carnly,  4  Grat.  546. 

38 


IN   THE    FEDERAL    AND    STATE    COURTS.  (59) 

vided,  and  against  the  peace  and  dignity  of  the  Commonwealth  of 
Virginia.(^^^') 

(56)  North  Carolina.      Commencement. 

\x)  County,  to  wit:   Superior  Court  of   law,  term, 

184  .     The  jurors  for  the  State  upon  their  oath  present  that, 
■  &c.{y) 

(57)  Conclusion  for  common  law  offence. 

Against  the  peace  and  dignity  of  the  State.(2) 

(58)    Conclusion  for  statutory  offence. 

Contrary  to  the  statute  in  such  case  made  and  provided, (a)  and 
against  the  peace  and  dignity  of  the  State. 

(59)  South  Carolina.      Commencement. 

The  State  of  South  Carolina,      )    rp        -j. 
.  '      >■    10  wit: 

District,  ) 

At  a  Court  of  General  Sessions,  begun  and  holden  in  and  for 
the  district  of  in  the  State  of  South  Carolina,  at  in 

the  district  and  State  aforesaid,  on  the  day  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and  forty- 

The  jurors  of  and  for  the  District  of  aforesaid,  in  the  State 

of  South  Carolina  aforesaid,  that  is  to  say,  &c.,  upon  their  oaths 
present,  &c. 

(w)   See  for  this  form,  Com.  v.  Daniels,  2  Va.  Cases,  402. 

In  case  of  misdemeanor  it  is  said  that  though  the  name  of  the  county  be  left 
blank  in  the  margin,  the  deficiency  will  be  made  up  by  the  statement  of  the 
county  in  the  body  of  the  indictment.     Teeft  v.  Com.,  8  Leigh,  721. 

(x)  The  omission  of  "  North  Carolina "  is  no  cause  for  arresting  judgment 
where  the  name  of  the  county  appears  in  the  mai-gin  or  body  of  the  indictment. 
State  V.  Lane,  4  Iredell,  113. 

(?/)  Wliere  the  term  is  stated  in  these  words  :  "  Fall  term,  1822,"  and  in  the 
body  of  the  indictment  the  offence  is  charged  "  on  the  first  day  of  August  in  the 
present  year,"  the  time  is  sufficiently  set  forth ;  and  it  is  said  there  is  no  neces- 
sity for  stating  any  time  in  the  caption  of  an  indictment  found  in  the  county  or 
superior  courts.     State  v.  Haddock,  2  Hawks,  461. 

(z)  State  V.  Evans,  5  Iredell,  603. 

(a)  State  v.  Jim,  3  Murph.  3.  See,  as  to  the  propriety  of  concluding  "against 
the  statutes"  where  the  act  is  in  violation  of  more  than  one  statute.  State  v. 
Pool,  2  Dev.  202.  The  unnecessary  insertion  of  the  qualification  "  coTi^ra  _/oj'- 
mam,"  &c.,  does  not  vitiate  a  common  law  indictment.  Haslip  v.  State,  4  Hay. 
273.     See  Wh.  C.  L.  §  413. 

39 


(^QS}  COMMENCEMENTS   AND    CONCLUSIONS 

(00)    Conclusion  f 07-  common  law  offence. 
Against  the  peace  and  dignity  of  the  same  State  aforesaid. (5) 

(61)    Co7iclusion  for  statutory  offence. 

Against  the  form  of  the  act  of  the  general  assembly  of  the  said 
State(c)  in  such  case  made  and  provided,  against  the  peace  and 
dignity  of  the  same  State  aforesaid. 

(62)    Georgia.     Cominencement. 

Georgia.  —  Gwinnett  County,  ss. 

The  grand  jurors  sworn,  chosen  and  selected  for  the  County 
of  Gwinnett,  in  the  name  and  in  the  behalf  of  the  citizens  of 
Georgia,  on  their  oath  present,  &c.(t^) 

(63)    Conclusion  for  common  law  offence. 

Contrary  to  the  good  order,  peace,  and  dignity  of  the  said 
State. 

(64)    Conclusion  for  statutory  offence. 

Contrary  to  the  laws  of  the  said  State,  the  good  order,  peace, 
and  dignity  thereof. 

{Q5')  Alabama.      Commencement. 

The  State  of  Alabama,  County.     In    Circuit    Court,    at 

term,  184  . 

The  grand  jurors  for  the  said  State  of  Alabama,  empanelled, 
sworn,  and  charged  to  inquire  for  the  body  of  County,  upon 

their  oath  present,  &c. 

(b)  Though  the  commencement  in  the  margin  is  "  Soutli  Carolina,"  and  not 
"  State  of  South  Carolina,"  a  conclusion  "  against  the  peace  and  dignity  of  the 
said  State  "  is  good.  State  v.  Anthony,  1  M'Cord,  285.  The  same  ruling  was 
had  as  to  the  conclusion  "against  the  peace  and  dignity  of  this  State,"  and  as  to 
that  "  against  the  peace  and  dignity  of  the  same ;  "  the  constitution  prescribing 
the  termination,  "  against  the  peace  and  dignity  of  the  same."  State  v.  Yancey, 
1  Tr.  Con.  Rep.  237;   State  v.  Washington,  1  Bay,  120. 

(c)  Unless  the  statute  is  merely  declaratory  of  the  common  law,  without  add- 
ing to  it  or  altering  it,  the  conclusion  should  be,  in  all  cases  where  a  statute 
comes  into  play,  "  contra  formam."     State  v.  Ripley,  2  Brevard,  382. 

(d)  "Worcester  v.  State,  6  Peters,  520. 

40 


IN    THE    FEDERAL    AND    STATE    COURTS.  (70) 

(66)    Conclusion  for  common  laiv  offence. 
Against  the  peace  and  dignity  of  the  State  of  Alabama.(<:?^) 

(67)    Conclusion  for  statutory  offence. 
Contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  State  of  Ala- 
bama.(e) 

(68)  3Iississippi.      Commencement. 

The  State  of  Mississippi, (/)  County,  ss. 

In  the  Criminal  Court  (or  Circuit  Court)  for  County, 

at  the  terra  thereof,  in  the  year  of  our  Lord  one  thou- 

sand eight  hundred  and  forty- 

The  grand  jurors  for  the  State  of  Mississippi  (taken  from  the 
body  of  the  good  and  lawful  men  of  County)  elected,  em- 

panelled, and  sworn  to  inquire  in  and  for  the  said  county  of 
at  the  term  of  aforesaid  (in  the  name  and  by  the  authority 

of  the  State  of  Mississippi), (g-)  upon  their  oath  present,  &c. 

(69)   Conclusion  for  common  laiv  offence. 
Against  the  peace  and  dignity  of  the  State  of  Mississippi.(A) 

(70)    Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  Common- 
wealth of  Mississippi. 

(d^)  K  tlie  indictment  concludes  against  tlie  peace,  &c.,  it  is  not  necessary 
that  each  preceding  count  should  so  conclude.  McGuire  v.  State,  37  Ala. 
161. 

(e)   See  State  i'.  Williams,  3  Stew.  454  ;  State  v.  Coleman,  5  Port.  32. 

(/)  It  is  not  essential  that  there  should  be  a  formal  statement  of  a  finding  by- 
authority  of  the  State.  It  is  enough  if  it  appear  from  the  record  that  the  prose- 
cution is  in  the  State's  name.  Greeson  v.  State,  5  How.  Miss.  R.  33  ;  Woodsides 
V.  State,  2  lb.  33. 

{g)  The  passages  in  brackets,  though  usual,  can  be  omitted.  Woodsides  v. 
State,  2  How.  Miss.  R.  655.     See  Greeson  v.  State,  5  How.  Miss.  R.  32. 

Qi)  An  indictment,  beginning  "  State  of  Mississippi,"  and  concluding  "against 
the  peace  and  dignity  of  the  same,"  is  sufficiently  precise.  State  v.  Johnson,  1 
Walker,  392. 

41 


(75)  COMMENCEMENTS    AND   CONCLUSIONS 

(71)  Louisiana.      Commeiicement. 

The  State  of  Louisiana,  First  Judicial  District,  ss.  Parish  of 
Orleans.     Criminal  Court  of  the  First  District. 

The  grand  jurors  for  the  State  of  Louisiana,  duly  empanelled 
and  sworn,  in  and  for  the  Parishes  of  Orleans,  Jefferson,  and 
Plaquemines,  upon  their  oath  present,  &c. 

(72)    Conclusion  generally. 

Contrary  to  the  form  of  the  statute  (of  the  State  of  Louis- 
iana),(/t^)  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  same.(i) 

(73)  Michigan.      Commenceme7it. 

State   of  Michigan.     The    Circuit   Court  for   the   County  of 
Wayne,  of  the  term  of  May,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  forty- 
Wayne  County,  ss. 

The  grand  jurors  of  the  people  of  the  State  of  Michigan,  in- 
quiring in  and  for  the  body  of  the  County  of  Wayne  aforesaid, 
upon  their  oath  present,  &c. 

(74)    Conclusion  for  common  laiv  offence. 

Against  the  peace  and  dignity  of  the  people  of  the  State  of 
Michigan. 

(75)    Conclusion  for  statutory  offence. 
Against  the  form  of  the  statute  in  such  case  made  and  pro- 

(/i')  The  omission  of  tliis  is  not  fatal.     State  v.  Korn,  16  La.  Ann.  183. 

(i)  Informntion. 

The  State  of  Louisiana,  First  Judicial  District,  ss. 

Criminal  Court  of  the  First  District. 

Christian  Iloselius,  Attorney-General  of  the  State  of  Louisiana,  who,  in  the 
name  and  by  the  authority  of  the  said  State,  prosecutes  in  this  behalf,  in  proper 
person  comes  into  the  Criminal  Court  of  the  First  District,  at  the  City  of  New 
Orleans,  on  the  day  of  ,  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  forty-  ,  and  gives  the  said  court  here  to  understand  and  be 

informed,  &c.  contrary  to  the  form  of  the  statute  of 

the  State  of  Louisiana,  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  same. 

42 


IN   THE    FEDERAL    AND   STATE    COURTS.  (79) 

vided,  and  against  the  peace  and  dignity  of  the  people  of  the 
State  of  Michigan. 

(76)    Ohio.     Commencement. 

The  State  of  Ohio,  Franklin  County,  ss. 

The  Court  of  Common  Pleas,  Franklin  County,  Ohio,  of  the 
term  of  June,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  fifty-three. 

The  jurors  of  the  grand  jury  of  the  State  of  Ohio,  empanelled, 
sworn,  and  charged(y)  to  inquire  of  offences  committed  within 
the  said  County  of  Franklin,  in  the  name  and  by  the  authority 
of  the  State  of  Ohio,  on  their  oaths  do  present  and  find.(y^) 

(77)    Conclusion  for  common  laiv  offeyice. 
Against  the  peace  and  dignity  of  the  State  of  0\\\o.{f) 

(78)    Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  State  of 
Ohio.(/) 

(79)  Indiana.      Commencement. 

State  of  Indiana,  County  of 

In  the  court,  &c.  {setting'  out  the  same),  of  term,  184     . 

The  grand  jurors  empanelled  and  sworn,  c%c.,  to  inquire  for  the 

(./)  It  is  not  necessary  that  it  should  be  averred  in  the  indictment  that  the 
grand  jury  were  empanelled  and  sworn  to  inquire  within  and  for  the  body  of 
the  county.  "  The  law,"  it  was  said  by  the  Supreme  Court  in  this  connection, 
"  points  out  the  duty  of  the  grand  jury ;  the  law  requires  them  to  inquire  within 
and  for  the  body  of  the  county,  where  they  are  empanelled,  and  for  no  other 
county  ;  for  her  they  are  empanelled  and'  sworn ;  therefore  the  law  presumes  the 
purpose,  and  it  is  not  error,  any  more  than  it  would  be  to  omit  to  state  their 
number,  to  omit  an  averment  of  the  purpose  for  which  they  are  empanelled,  when 
they  can  under  law  be  empanelled  for  no  other  purpose."  Ohio  v.  Hurley,  6 
Ohio  E.  399. 

(yi)  Warren's  C.  L.  5. 

(/■^)  As  no  common  law  offences  are  now  recognized  in  Ohio,  this  conclusion, 
without  the  statutory  averment,  is  obsolete  and  defective. 

(y3)  See  Const,  art.  3,  s.  12,  where  the  same  termination  is  prescribed  as  is 
given  in  the  constitution  of  Pennsylvania ;  as  to  construction  of  which,  see  ante, 
(44). 

43 


(81)  COMMENCEMENTS  AND   CONCLUSIONS 

State  of  Indiana  and  the  body  of  the  County  of  Y.,{k)  upon  their 
oath  do  present,  &c. 

(80)    Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute(/c')  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  State.(Z) 

(81)    Conclusion  for  common  Imv  offence. 
Against  the  peace  and  dignity  of  the  State. 

(t)  See  State  v.  Kiger,  4  Indiana,  621 ;  Curtz  v.  State,  lb.  385. 

{k')  Notwithstanding  the  general  laxity  of  pleading  in  this  State,  of  which 
the  next  note  gives  a  strong  instance,  an  indictment  was  quashed  which  con- 
cluded against  the  form  of  the  .ttafule,  instead  of  statutes,  and  the  broad  ground  Avas 
taken  that  when  an  offence  is  created  by  one  statute,  and  the  punishment  declared 
by  another,  the  plural  termination  is  essential.  State  v.  Moses,  7  Blackf.  244. 
Ante,  2,  note  {k).     This  strictness  is  now  obviated  by  2  R.  S.  (G.  &  H.)  403. 

(I)  Where  the  words  "  and  dignity  "  were  omitted,  the  court  amended  the  in- 
dictment, with  the  consent  of  the  jirosecuting  officer,  by  inserting  them.  Cain 
V.  State,  4  Blackf.  512.  "The  indictment  in  this  case,"  said  Sullivan  J.,  "as  it 
was  returned  by  the  grand  jury,  did  not  conclude  '  against  the  peace  and  dignity 
of  the  State.'  The  contra  dignitatem  was  omitted.  Before  the  defendant  was 
arraigned,  the  prosecuting  attorney  moved  the  court  to  insert  the  omitted  words. 
The  defendant  objected,  but  the  court  overruled  the  objection,  and  permitted 
the  amendment  to  be  made. 

"  The  indictment,  as  it  was  returned,  was  undoubtedly  insufficient ;  but  the 
question  is  whether  the  court  was  authorized  to  amend  it,  so  as  to  make  the 
conclusion  of  the  indictment  conform  to  the  requisition  of  the  constitution. 

"  There  is  no  doubt  but  that  the  court,  by  the  consent  of  the  grand  jury,  may 
amend  indictments  in  matters  of  form.  They  may  be  amended  in  any  case 
where  an  amendment  was  allowable  at  common  law.  In  this  respect,  there  is 
no  difference  between  civil  and  criminal  cases.  The  settled  practice,  when  an 
indictment  is  returned  into  court,  is  to  obtain  the  consent  of  the  grand  jury,  that 
the  court  may  amend  it  in  matters  of  form,  not  altering  the  substance. 

"  The  words  with  which  the  constitution  requires  all  indictments  to  conclude, 
are  words  of  form.  The  facts  are  found  by  the  jury  on  their  oath,  but  the  con- 
clusion is  affixed  by  law.  The  grand  jury  have  nothing  to  do  with  finding  that 
conclusion,  nor  does  the  constitution  require  that  it  should  be  found  by  the 
grand  jury.  The  amendment  made  in  this  case  did  not  hinder,  delay,  or  em- 
barrass the  defendant,  nor  did  it  deprive  him  of  any  just  means  of  defence. 

"  We  think  the  Court  did  right  in  permitting  the  amendment  to  be  made,  and 
that  the  judgment  of  the  Circuit  Court  should  be  affirmed.  1  Chit.  C..L.  297,  298, 
and  the  authorities  cited ;  1  Saund.  R.  249,  n.  1." 

44 


IN   THE    FEDERAL   AND    STATE   COURTS.  (87) 

(82)  Illinois.     Commencement. 

State  of  Illinois,  County,  ss. 

Of  the  term  of  the  Circuit  Court  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  forty- 

The  grand  jurors  chosen,  selected,  and  sworn  in  and  for  the 
county  of  in  the  name  and  by  the  authority  of  the  people 

of  the  State  of  Illinois,  upon  their  oaths  present,  &c.  (l^) 

(83)    Conclusion  for  common  law  offeyice. 

Against  the  peace  and  dignity  of  the  people  of  the  State  of 
Illinois.(^2) 

(84)    Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  said  people  of 
the  State  of  Illinois. 

(85)  Kentucky.     Commencement. 

Commonwealth  of  Kentucky,  County,  ss. 

The  grand  inquest  of  the  Commonwealth  of  Kentucky,  inquir- 
ing for  the  county  of  ,  on  their  oath  present,  &c. 

(86)    Conclusion  for  common  law  offence. 

Against  the  peace  and  dignity  of  the  Commonwealth  of  Ken- 
tucky. 

(87)    Conclusion  for  statutory  offence. 

Against  the  statute  in  such  case  made  and  provided,  and 
against  the   peace  and  dignity  of  the  Commonwealth  of   Ken- 

tucky.(7n) 

(/I)   See  Bassett's  Crim.  PI.  41. 

(/2)  Zarresseller  v.  People,  17  111.  101. 

(m)  The  conclusion  "  contra  formam"  &c.,  if  improperly  introduced,  can  al- 
ways be  treated  as  surplusage.  Com.  v.  Gregory,  2  Dana,  103.  Notwithstand- 
ing the  constitutional  provisions  that  all  prosecutions  should  be  carried  on  in  the 
name  and  by  the  authority  of  the  Commonwealth  of  Kentucky,  it  is  not  requisite 
that  indictments  should  so  conclude.  This  point  was  discussed  by  Chief  Justice 
Boyle,  in  an  elaborate  opinion  in  Allen  v.  Com.,  2  Bibb,  210 :  "  At  the  common 
law,"  he  said,  "  prior  to  the  Revolution,  prosecutions  were  carried  on  in  the 
name  and  by  the  authority  of  the  king,  in  his  political  capacity ;  but  the  forms 
of  indictments  show  that  it  was  unnecessary  to  be  expressed,  to  be  found  by  his 

45 


(91)  COMMENCEMENTS   AND    CONCLUSIONS 

(88)   Tennessee.     Commencement. 

State  of  Tennessee.  Hardin  County,  Circuit  Court,(w)  No- 
vember term,  1829. 

The  grand  jurors  of  the  State  of  Tennessee,  elected,  empan- 
elled, sworn,  and  charged  to  inquire  for  the  body  of  the  County 
of  Hardin  aforesaid,  upon  their  oath  present,  &c. 

(89)    Conclusio7i  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State.(o) 

(90)    Conclusion  for  statutory/  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  State. 

(91)  Missouri.      Commencement. 

State  of  Missouri,  A.  County,  ss. 
The  Circuit  Court,  term  184  . 

The  grand  jurors  for  the  State  of  Missouri  for  A.  County,  sworn 
to  inquire, (p)  upon  their  oath  present,  &c. 

authority.  When  we  threw  off  the  regal  government  and  adopted  the  repub- 
lican form,  it  became  necessary  to  provide  that  prosecutions  should  be  carried 
on  in  the  name  and  by  the  authority  of  the  Commonwealth ;  but  as  under  the 
reo-al,  so  under  our  present  form  of  government,  it  is  equally  unnecessary  that 
an  indictment  should  expressly  aver  by  what  authority  it  is  found  and  carried 
on.  This  indictment  was,  as  all  other  indictments  must  be,  carried  on  by  the 
authority  of  the  Commonwealth  of  Kentucky,  and  not  by  the  authority  of  any 
other  power;  and  tliat  is  alone  what  the  constitution  requires." 

The  omission  "  of  Kentucky,"  at  all  events,  is  not  fatal.  Com.  v.  Young,  7 
B.  Monroe,  1. 

(?i)  It  should  appear  in  what  court  the  indictment  is  found,  so  that  it  shall 
carry  with  it  jurisdiction.     Dean  v.  State,  Mart.  &  Yerg.  127. 

The  grand  jury  must  appear  from  the  whole  record,  to  come  fi-om  the  county 
over  which  the  court  has  jurisdiction.  Tipton  v.  State,  Peck's  R.  8  ;  Cornell  v. 
State,  Mart.  &  Yerg.  147.  ^ 

(o)  State  i;.  Barnes,  5  Yerg.  187.  The  object  of  the  conclusion,  "  con/m 
formam,"  &c.,  is  to  indicate  to  the  court  and  the  defendant  that  the  offence  and 
the  penalty  are  statutory.     Grain  v.  State,  2  Yerg.  390. 

(p)  See  State  v.  England,  19  Mo.  386.     "  Sworn  to  inquire"  is  surplusage, 
though  it  is  the  practice  to  introduce  it. 
4G 


IN   THE   FEDERAL    AND   STATE    COURTS.  (96) 

(92)    Conclusion  for  conwion  law  offence. 
Against  the  peace  and  dignity  of  the  State. (/>)i) 

(93)    Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  State  of  Mis- 
souri, (g') 

(94)  Arkansas.      Commencement. 

State  of  Arkansas,  County,  ss. 

Court,  &c.,  of  term,  184  . 

The  grand  jurors  for  the  State  of  Arkansas,  sworn  and  charged 
to  inquire  for  the  coilnty  of  upon  their  oath  present,  &c. 

(95)    Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State  of  Arkansas.(r) 

(96)    Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  State  of 
Arkansas. 

(pi)  An  omission  of  this  is  fatal.     State  v.  Lopez,  19  Mo.  254. 

(^)  The  indictment  is  usually  signed  "  C.  D.,  circuit  attorney,"  though  this, 
it  seems,  is  unnecessary.     Thomas  v.  State,  6  Miss.  45  7. 

(r)  The  constitutional  provision,  that  the  conclusion  shall  be  "  against  the 
peace  and  dignity  of  the  State  of  Arkansas,"  will  not  be  deviated  from  by  the 
insertion  of  the  words  "the  people  of"  before  the  State.  Anderson  v.  State,  5 
Pike,  445;  Buzzard  v.  State,  20  Ark.  106.     See  State  v.  Cadle,  19  Ark.  613. 

47 


BOOK    II. 

CHAPTER  I. 

ACCESSAEIES.(a) 

(97)  Against  accessary  before  the  fact,  together  with  the  principal. 

(98)  Against  an  accessary  before  the  fact,  the  principal  being  convicted. 

(99)  Against  accessary  after  the  fact  with  the  principal. 

(100)  Against  an  accessary  after  the  fact,  the  principal  being  convicted. 

(101)  Against  accessary  before  the  fact,  generally  in  Massachusetts. 

(102)  Indictment  against  an  accessary  before  the  fact,  in  murder,  at  com- 

mon law. 

(103)  Against  accessaries  before  the  foct  in  Massachusetts. 

(104)  Against  an  accessary  for  harboring  a  principal  felon  in  murder. 

(105)  Against  an  accessary  to  a  burglary  after  the  fact. 

(106)  Against  principal  and  accessaries  before  the  fact,  in  burglary. 

(107)  Against  accessary  before  the  fact  to  suicide.     First  count  against  sui- 

cide as  principal  in  the  first  degree,  and  against  party  aiding  him 
as  principal  in  the  second  degree. 

(108)  Second  count  against  defendant  for  miu'dering  suicide. 

(109)  Against  a  defendant  in  murder  who  is  an  accessary  before  the  fact  in 

one  county  to  a  murder  committed  in  another. 

(110)  [For  other  forms  of  indictments  against  accessaries  in  homicide,  see 

jwst,  132,  156,  &c.] 

(111)  Larceny.     Against  principal  and  accessary  before  the  flict. 

(112)  Against  accessary  for  receiving  stolen  goods. 

(113)  Against  accessary  for  receiving  the  principal  felon. 

(97)  Against  accessary  before  the  fact,  together  with  the  principal. 

(^After  charging  the  principal  with  the  offence^  and  immediately 
before  the  conclusion  of  the   indictment,  charge  the  accessary  thus^  : 

(a)  ( Who  are  accessaries.  —  Time  of  trial  and  venue.')      See  this  subject 
considered  in  Wh.  Cr.  Law  as  follows  :  — 
L  Statutes,  §  91. 

United  States,  §  91. 

Aiding,  advising,  &c.,  felony  on  high  seas,  §  91. 
Concealing  or  aiding  felon,  §  92. 

48 


ACCESSARIES.  (97) 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  J.  W.,  late  of  the  parish  aforesaid,  in  the  county 

Massachusetts,  §  93. 

Aiding  or  advising  felon,  §  93. 

May  be  indicted  for  substantive  felony,  §  94. 

Accessary  before  fact,  may  be  tried  in  the  county  where  the  offence 
was  committed,  §  95. 

Concealing  or  harboring  felon,  §  96. 

Not  necessary  that  principal  felon  should  have  been  convicted,  §  97. 
New  York,  §  98. 

Principal  in  second  degree,  and  accessary  before  fact,  punishment  of, 
§98. 

Accessary  after  fact,  punishment  of,  §  99. 

Where  indictment  may  be  found,  §  100. 

Principal  need  not  have  been  convicted,  §  101. 

Accessary  to  kidnapping,  &c.,  §  102. 
Pennsylvania,  §  103. 

Where  indictment  may  be  found,  §  103. 

Punishment,  &c.,  of  accessaries  after  fact,  §  105. 
Virginia,  §  107. 

Where  indictment  may  be  found,  §  107. 

Accessaries  to  be  attached,  &c.,  §  108. 

Harboring  liorse  stealers,  &c.,  §  109. 

Liability  of  accessary  in  case  of  principal,  §  109. 

Standing  mute,  &c.,  §  110. 
Ohio,  §  111. 

Punishment  for  aiding  and  abetting,  &c.,  §  111. 
II.  Principals  and  accessaries  generally,  §  112. 
1st.   Principals  in  the  first  degree,  §  112. 
2d.    Principals  in  the  second  degree,  §  116. 
3d.    Accessaries  before  the  fact,  §  134. 
4th.  Accessaries  after  the  fact,  §  146. 
5th.  LiabiUty  of  principal  for  criminal  act  of  agent,  §  151. 

(a)  Wliere  the  agent  acts  directly  under  the  principal's  commands, 

§  152. 

(b)  Where  the  agent  is  acting  at  the  time  in  the  line  of  the  princi- 

pal's business,  but  without  specific  instructions,  §  153. 

(c)  Where  the  principal  resides  out  of  the  jurisdiction,  §  154. 
In  addition  to  which  the  following  general  observations  may  be  of  use :  — 
An  accessary  is  he  who  is  not  the  chief  actor  in  an  offence,  fiov  present  at  its 

performance,  but  is  in  some  way  concerned  therein,  either  before  or  after  the  fact 
committed.  4  Black.  Com.  35 ;  Burr's  case,  4  Cranch,  502 ;  Com.  i:  Andrews,  3 
Mass.  126  ;  Com.  v.  Briggs,  5  Pick.  429  ;  Com.  v.  Woodward,  Thach.  C.  C.  63  ; 
State  V.  Groff,  1  Murph.  270;  Com.  v.  WilUamson,  2  Va.  Cases,  211. 

An  accessary  before  the  fact  is  he  who,  being  absent  at  the  time  of  the  com- 

VOL.  I.  — 4  49 


(^117)  ACCESSARIES. 

aforesaid,  laborer,  before  the  said  {felony  and  larceny^  or  felony  and 
burglary)  was  committed  in  form  aforesaid,  to  wit,  on  the  first  day 

mission  of  a  ft^lony,  '•'procures,  cmmseln,  or  commands  "  the  principal  felon  to  com- 
mit it  (1  Ilale,  013  )  ;  as  if"  several  plan  a  theft  which  one  is  to  execute,  or  if  a 
person  incites  a  servant  to  embezzle  the  goods  of  his  master.  Command  includes 
all  those  who  incite,  procure,  set  on,  or  stir  up  any  other  to  do  the  fact.  Fost. 
126;  East's  P.  C.  041 ;  2  Hawk.  c.  33,  s.  G5;  State  v.  Ilanna,  1  Hay.  4;  Wh.  C. 
L.  §  112;  People  v.  Norton,  8  Cow.  137. 

An  accessary  after  the  fact  is  one  who,  knowing  a  felony  to  have  been  com- 
mitted, receives,  harbors,  relieves,  comforts,  and  assists  the  principal  or  accessary 
before  the  flxct,  with  a  view  to  his  escape.  1  Hale,  G18.  Employing  another  to 
harbor  felons  seems  sufficient  to  constitute  this  offence.  4  Bla.  C.  37;  2  Hawk. 
c.  29,  s.  1 ;  3  P.  Wms.  475.  But  the  assisting  must  be  to  the  felons  personally. 
Reg.  V.  Chappie  and  others,  9  C.  &  P.  355. 

As  in  treason,  so  in  misdemeanors,  there  are  no  accessaries,  but  in  felonies 
only.  1  Hale,  238,  613;  Fost.  341 ;  Wh.  C.  L.  §  112,  &c.,  151.  "In  the  high- 
est offences  (crimen  Icesce  majestatis),  and  in  the  lowest  (riots,  routs,  forcible 
entries,  and  vi  et  armis),  there  be  no  accessaries ;  but  in  felonies  there  be,  both 
before  and  after."  See  Co.  Lit.  57,  a,  b.  What  makes  a  man  accessary  before 
the  fact  in  felony  makes  him  principal  in  misdemeanor.  Reg.  v.  Clayton  and 
Mooney,  C.  &K.  128.  The  rule  is  proved,  says  Serjeant  Talfourd,  by  the  excep- 
tion in  misdemeanors  punishable  under  act  against  malicious  injuries  to  person. 
In  this  country  the  same  rule  has  been  settled  by  repeated  adjudications.  Whit- 
aker  y.  English,  1  Bay,  15;  Chanit  i'.  Parker,  1  Rep.  Con.  Ct.  333;  State  v. 
Goode,  1  Hawks,  463;  Curlin  v.  State,  4  Yerg.  143;  Com.  v.  M'Atee,  8  Dana, 
28;  Com.  v.  Major,  6  Dana,  293;  Com.  v.  Burns,  4  J.  J.  Marsh.  182;  Com.  v. 
Gillespie,  7  S.  &  R.  469  ;  U.  S.  v.  Morrow,  4'  W.  C.  C.  733 ;  Com.  v.  Macomber, 
3  Mass.  254;  U.  S.  ?;.  Mills,  7  Peters,  138;  State  u.  Westfield,  1  Bail.  132;  State 
V.  Barden,  1  Dev.  518.  Nor  were  there  in  England  any  accessaries  in  larceny 
under  or  to  the  value  of  12^/.,  until  the  7  and  8  G.  IV.  c.  29  abolished  the  dis- 
tinction between  grand  and  petty  larceny,  and  rendered  the  law  of  grand  larceny 
applicable  to  all  cases  of  theft,  however  trifling  in  value. 

At  common  law  a  party  guilty  of  receiving  stolen  goods  did  not  come  within 
the  definition  of  an  accessary  after  the  fact ;  but  his  offence  was  made  punishable 
as  that  of  an  accessary  after  the  flict  and  otherwise  by  statutes  existing  in  every 
State  of  the  Union,  and  which  will  be  noticed  under  the  proper  head.  No  ac- 
cessaries before  or  after  the  fact  could  at  common  law,  without  their  consent,  be 
brought  to  trial,  unless  with  the  principal,  or  after  his  guilt  has  been  legally  as- 
certained by  his  conviction  on  having  taken  his  trial  singly  ;  or,  afler  his  out- 
lawry on  a  capital  crime,  which  is  equivalent  to  attainder  (4  Bla.  C.  40,  132)  ; 
and  even  the  entry  of  a  i)lea  does  not  waive  the  prisoner's  right  to  call  for  the 
record  of  the  principal's  conviction.  Fost.  360 ;  U.  S.  v.  Berry,  4  Cranch,  502. 
Even  the  death  of  the  principal  before  conviction  does  not  relieve  the  prosecu- 
tors from  the  pressure  of  the  rule.  Com.  i;.  Phillips,  16  Mass.  423.  In  North 
Carolina  the  principle  has  been  somewhat  expanded,  it  having  been  there  held 

50 


ACCESSARIES.  (97) 

of  August,  in  the  year  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  did  feloniously  and  malicioLifily  incite,  move,  pro- 

that  the  accessary  is  not  liable  to  be  tried  while  the  principal  is  amenable  to 
the  laws  of  the  State,  and  is  still  unconvicted.  State  v.  Goode,  1  Hawks,  463* 
State  V.  Groif,  1  Murph.  270.  See  Harris  v.  State,  3  Blackf.  386.  But  now  in 
England  by  7  G.  IV.  c.  64,  s.  11,  and  in  many  of  the  United  States  by  statutes 
of  similar  import,  in  order  that  all  accessaries  may  be  convicted  and  punished 
in  cases  where  the  principal  felon  is  not  attainted,  it  is  enacted  that  if  any  prin- 
cipal offender  shall  be  in  anywise  convicted  of  any  felony,  it  shall  be  lawful  to 
proceed  against  any  accessary,  either  before  or  after  the  fact,  in  the  same  man- 
ner as  if  such  principal  felon  had  been  attainted  thereof,  notwithstanding  such 
principal  felon  shall  die,  be  (admitted  to  benefit  of  clei-gy,  or)  pardoned,  or  oth- 
erwise delivered  hefore  attainder :  and  every  such,  accessary  shall  suffer  the 
same  punishment,  if  in  anywise  connected,  as  he  or  she  should  have  suffered  if 
the  principal  had  been  attainted.  Dickinson's  Q.  S.  6th  ed.  293.  See  as  to 
Massachuselts  statute,  post,  101,  note  (/). 

(^Principals  iti  first  and  second  degrees.')  All  parties  who  are  present  at  the 
fact  of  committing  Si  felony,  and  concur  therein,  are  principals,  whether  they  as- 
sist by  manual  exertion  (which  constitutes  them  principals  in  the  first  degree), 
or  only  by  command,  coojieration,  or  encouragement,  though  they  were  anciently 
deemed  only  accessaries,  viz.  down  to  the  reign  of  Henry  VH.  See  Plowden, 
100;  Wh.  C.  L.  §  116. 

A  constructive  presence  suffices  to  make  a  man  a  principal  (in  the  second  de- 
gree) as  an  aider  and  abettor ;  for  he  need  not  be  actually  present ;  if  an  eye  or 
ear  witness  of  the  transaction,  he  is,  in  construction  of  law,  ^^ present,  aiding  and 
abetting  "  (i.  e.  encouraging  or  setting  on).  This  term  includes  seconds  present 
at  a  fatal  duel.  R.  v.  Cuddy,  C.  &  K.  210.  So  if  he  act  in  concert  with  the 
principals,  and  if,  with  the  intention  of  giving  them  assistance,  he  be  near 
enough  at  the  time  of  the  felony  committed,  to  afford  it,  should  the  occasion 
arise,  e.  g.  by  watching  outside  of  a  house  to  prevent  surprise,  while  his  com- 
panions are  committing  the  felony,  or  to  receive  goods  which  they  are  stealing 
in  it,  or  remaining  at  convenient  distance  in  order  to  favor  their  escape  if  nec- 
essary. Fost.  3.50 ;  Hale,  439.  See  K  v.  Borthwick,  1  Dougl.  207  ;  R.  v.  Gogerly, 
R.  &  R.  343 ;  R.  v.  Owen,  1  Mood.  C.  C.  96  ;  R.  v.  Stewart,  R.  &  R.  363 ;  Plow- 
den, 96.  If,  however,  he  is  constructively  present,  with  the  intent  not  of  assist- 
ing but  of  detecting  the  felony,  he  has  not  the  felonious  intent  necessary  to  con- 
vict him  as  a  principal  felon,  though  his  motive  in  so  acting  was  to  get  a  reward. 
R.  I'.  Donnelly  and  another,  2  Marsh.  571  ;  S.  C,  R.  &  R.  310.  Where  the  par- 
ties are  principals  in  the  second  degree  as  well  as  in  fact  they  are  in  the  first, 
they  may  be  charged  either  way  in  one  count;  Reg.  v.  Crisham,  C.  &  M.  187 
(Maule,  J.,  and  Rolfe,  B.)  ;  or  both  ways  in  different  counts.  Thus  an  indict- 
ment in  its  first  count  charged  that  Folkes  ravished  E.,  and  Ludds  at  the  time 
of  committing  the  said  felony  and  rape  in  form  aforesaid,  to  wit,  on,  &c.,  with  F. 
and  A.  at,  &c.,  feloniously  was  present,  aiding,  abetting,  and  assisting  Folkes  the 
felony  and  rape  to  do  and  commit  against  the  peace,  &c.  ;  and  in  other  counts 

61 


(98)  ACCESSARIES. 

cure,  aid,  counsel,  hire,  and  command  the  said  J.  S.  the  said  {fel- 
ony and  larceny^  or  felony  and  Imrg-Zary)  in  manner  and  form  afore- 
said to  do  and  commit.(A)     ( Conclude  as  ante,  book  1,  chap.  3.) 

(98)  Indictment  against  an  accessary  before  the  fact.,  the  j^rincipal 

heing  convicted. 

Middlesex,  to  wit :  The  jurors  for  our  lady  the  queen  upon  their 
Ludds  was  charged  as  pi'incipal  and  Folkes  as  aider;  in  others  an  "  evil  dis- 
posed person  unknown  "  was  laid  as  principal,  and  Folkes  and  Ludds  as  aiders ; 
and  Ludds  was  acquitted,  Folkes  convicted  generally,  it  appearing  that  the  lat- 
ter, with  three  other  men,  had  committed,  at  the  same  place  and  time,  one  after 
the  other  successively,  rapes  on  E..  the  others  aiding,  &c.,  in  turn.  It  was  said 
that  distinct  offences,  liable  to  distinct  punishments,  were  charged,  and  that  there 
was  therefore  a  misjoinder ;  as  9  G.  IV.  c.  31  contained  no  specific  provision 
against  aiders  and  abettors  in  ra}3e.  Held  by  the  judges,  on  case  reserved,  that 
the  conviction  was  good  on  the  first  count  charging  him  as  principal ;  and  that 
on  such  an  indictment  several  rapes  on  the  same  woman  by  prisoner  and  other 
men,  each  assisting  the  other  in  turn,  might  be  proved  without  putting  the  crown 
to  elect  on  which  count  to  proceed.     Folkes'  case,  1  Mood.  C.  C.  354. 

An  indictment  against  G.  and  W.  charged  in  the  first  count  W.  as  principal 
and  G.  as  an  aider,  in  the  second  it  charged  G.  as  principal  and  AV.  as  aider 
(viz.  as  principal  in  second  degree).  Coleridge  J.  refused  a  motion  to  quash  the 
indictment  for  misjoinder.  R.  v.  Gray  and  Wise,  7  C.  &  P.  164.  See  R.  v.  Parry 
and  others,  7  C.  &  P.  836 ;  Dickinson's  Q.  S.  6th  ed.  293. 

(&)  Mr.  Archbold,  in  his  note  to  this  form,  says  :  "  The  act  of  accessary  be- 
fore the  fact  is  described  in  the  several  statutes  creating  new  felonies,  or  punish- 
ing with  death  the  principal  and  accessaries  in  felonies  at  common  law,  in  differ- 
ent terms.  In  prudence,  perhaps,  it  will  be  better  to  pursue  the  words  of  the 
statute  upon  which  the  indictment  is  framed,  in  describing  the  offence  of  the 
accessary  ;  but  if  the  statute  do  not  mention  accessaries,  or  in  the  case  of  a  felony 
at  common  law,  the  Avords  in  the  above  form  '  incite,  move,  procure,'  &c.,  will  be 
sufficiently  indicative  of  the  offence.  And  even  where  the  statute  does  expressly 
describe  the  offence  of  accessary  in  terms,  it  is  not  absolutely  necessary  to 
describe  it  in  the  same  terms  in  the  indictment;  a  description  in  equivalent 
terms  will  be  sufficient :  thus,  where  the  words  in  the  statute  were  '  command, 
hire,  or  counsel,'  and  in  the  indictment,  '  excite,  move,  and  procure,'  the  indict- 
ment was  holden  good ;  because  the  words  were  of  the  same  legal  import.  R.  v. 
Grevil,  1  And.  195.  A  man  may  be  indicted  as  accessary  to  one  of  several 
])rincipals  or  to  all,  and  if  he  be  indicted  as  accessary  to  all,  he  may  be  convicted 
on  such  indictment  as  accessary  to  one  or  some  of  them.  Lord  Sanchar's  case, 
9  Co  119  ;  Fost.  361  ;  1  Hale  624.  An  indictment  charging  that  a  certain  evil 
disposed  person  feloniously  stole  certain  goods,  and  that  A.  B.  feloniously  incited 
the  said  evil  disposed  person  to  commit  the  said  felony,  is  bad  against  A.  B.  R. 
V.  Caspar,  2  Mood,  C.  C.  101  ;  9  C.  &  P.  289."  Accessaries,  Arch.  C.  P.  811; 
Wh.  C.  L.  §  134. 

52 


ACCESSARIES.  (10^) 

oath  present,  that  heretofore,  to  wit,  at  the  general  sessions  of  the 
delivery  of  the  gaol  of,  &c.,  &c.  {so  continuing-  the  caption  of  the  in- 
dictment against  the  principal)^  it  was  presented  upon  the  oaths  of, 
&c.,  that  one  J.  S.,  late  of,  &c.  {continuing  the  indictment  to  the  end, 
reciting  it,  however,  in  the  past,  and  not  in  the  present  tense),  upon 
which  said  indictment  the  said  J.  S.,  at  the  session  of  the  gaol 
delivery  aforesaid,  was  duly  convicted  of  the  {felony  and  larceny) 
aforesaid,  as  by  the  record  thereof  more  fully  and  at  large  ap- 
pears.((?)*  And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present  that  J.  W.,  late  of  the  parish  aforesaid,  in  the 
county  aforesaid,  laborer,  before  the  said  {felony  and  larceny)  was 
committed  in  form  aforesaid,  to  wit,  on  the  first  day  of  May  in 
the  year  aforesaid,  at  the  parish  aforesaid,  in  the  county  afore- 
said, did  feloniously  and  maliciously  incite,  move,  procure,  aid, 
counsel,  hire,  and  command  the  said  J.  S.  the  said  {felony  and 
larceny)  in  manner  and  form  aforesaid  to  do  and  commit ;  against 
the  peace,  &c.  {as  in  ordinary  cases). 

(99)  Indictment- against  accessary  after  the  fact  with  the  principal. 

{After  stating  the  offence  of  the  principal,  and  immediately  be- 
fore the  conclusion  of  the  indictment,  charge  the  accessary  after 
the  fact  thus) :  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present,  that  J.  W.,  late  of  the  parish  aforesaid, 
in  the  county  aforesaid,  laborer,  well  knowing  the  said  J.  S.  to 
have  done  and  committed  the  said  {felony  and  larceny)  in  form 
aforesaid,  afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  him  the  said  J.  S.  did 
feloniously  receive,  harbor,  and  maintain. (t?)  ( Conclude  as  ante, 
book  1,  chap.  3.) 

(100)  Indictment  against  an  accessary  after  the  fact,  the  principal 

being  convicted. 

{Proceed  as  in  the  precedent,  ante,  98,  to  the  asterisk;  and  then 
thus) :  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,   do 

(c)  In  setting;  out  the  indictment  against  the  principal,  it  is  not  sufficient  to 
allege  that  "at  the  sessions  of  gaol  delivery,  &c.,  it  was  presented,"  &c.,  without 
saying  by  whom,  and  on  oath,  &c.  Reg.  v.  Butterfield,  2  M.  &  Rob.  522.  As 
to  the  venue,  see  Arch.  C.  P.  815. 

(d)  Arch.  C.  P.  817. 

53 


(101)  ACCESSARIES. 

further  present,  that  J.  W.,  late  of  the  parish  aforesaid,  in  the 
county  aforesaid,  laborer,  well  knowing  the  said  J.  S.  to  have 
done  and  committed  the  [felony  and  larceny)  aforesaid,  after  the 
same  was  committed  as  aforesaid,  to  wit,  on  the  day  and  year 
aforesaid,  at  the  parish  aforesaid,  in  the  county  afm-esaid,  him  the 
said  J.  S.  did  feloniously  receive,  harbor,  and  maintain,  against 
the  peace,  &c.  [as  in  ordinary  cases). [e) 

(101)  Against  accessary  before  the  fact  generally  in  Massachusetts. 

[  Charge  the  offence  against  the  principcd  in  the  usual  form.,  and 
proceed) :  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
farther  present,  that  A.  B.,  of  in  the  County  of  yeoman, 

before  the  said  felony  and  murder  [or  burglary,  Sfc.)  was  com- 
mitted, in  manner  and  form  aforesaid,  to  wit,  on  at  was 
accessary  thereto  before  the  fact,  and  feloniously  and  maliciously 
[in  murder  say^  "  and  of  his  malice  aforethought"  instead  of  mali- 
ciously), did  counsel,  hire,  and  procure  the  said  C.  D.  [the  princi- 
pal) the  felony  and  murder  aforesaid,  in  manner  and  form  afore- 
said, to  do  and  commit ;  against  the  peace  of  said  commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided.(/) 

(e)  Arch.  C.  P.  820. 

(/)  The  Rev.  Stat.  c.  133,  §  1  and  2,  provide  :  "  Every  person,  who  shall  be 
aiding  in  the  commission  of  any  ofl'ence  which  shall  be  a  felony,  either  at  com- 
mon law,  or  by  any  statute  now  made,  or  which  shall  hereafter  be  made,  or  who 
shall  be  accessary  thereto  before  the  fact,  by  counselling,  hiring,  or  otherwise 
procuring  such  felony  to  be  committed,  shall  be  punished  in  the  same  manner, 
which  is  or  which  shall  be  prescribed  for  the  punishment  of  the  principal 
felony. 

"  Every  person,  who  shall  counsel,  hire,  or  otherwise  procure  any  offence  to 
be  committed  which  shall  be  a  felony,  either  at  common  law,  .or  by  any  statute 
now  made,  or  which  shall  hereafter  be  made,  may  be  indicted  and  convicted  as 
an  accessary  before  the  fact,  either  with  the  principal  felon,  or  after  (he  convic- 
tion of  the  principal  felon  ;  or  he  may  be  indicted  and  convicted  of  a  substantive 
felony,  whether  the  principal  felon  shall  or  shall  not  have  been  convicted,  or 
shall  or  shall  not  be  amenable  to  justice  ;  and  in  the  last  mentioned  case  may  be 
punished  in  the  same  manner  as  being  convicted  of  being  an  accessary  before 
the  fact." 

The  form  in  the  text  is  based  on  thC  above  statute,  and  is  in  conformity  with 
those  given  by  Mr.  Davis  under  it.  It  is  the  same  with  that  given  by  Train  & 
Heard,  p.  1 7, 

54 


ACCESSARIES.  (10;^)) 

(102)  Indictment  agahut  an  accessary  before  the  fact,  in  murder,  at 

common  law. 

{Frame  the  indictment  against  the  principal  in  the  usual  form, 
alleging  the  nature  of  the  murder,  and  then  proceed  as  follows) : 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  A.  B.  of  in  the  County  of  laborer,  before 

the  said  felony  and  murder  was  committed,  in  form  aforesaid,  to 
wit,  on  the  day  of  in  the  year  of  our   Lord   one  thou- 

sand eight  hundred  and  with  force  and   arms,  at  in  the 

county  aforesaid,  was  accessary  thereto  before  the  fact,  and  did 
'feloniously  and  maliciously  incite,  ruove,  procure,  aid,  counsel, 
hire,  and  command  the  said  C.  D.  to  do  and  commit  the  felony 
and  murder  aforesaid,  in  manner  and  form  aforesaid. («-)  ( Con- 
clude as  in  precedents  for  murder,  postea.) 

(103)  Accessaries  before  the  fact  in  Massachusetts. 

[After  alleging  the  murder  against  the  principal,  in  the  usual 
form,  upon  the  fir  at  section  of  the  statute  of  Massachusetts,  1804,  c. 
123,  §  1,  the  indictment  proceeds) :  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  J.  J.  Knapp,  of,  &c., 
and  George  Crowninshield,  of,  &c.,  before  the  said  felony  and  mur- 
der was  committed,  in  manner  and  form  aforesaid,  to  wit,  on 
at  were   accessary  thereto    before  the  fact,  and  feloniously^ 

wilfuUij,  and  of  their  malice  aforethought,  did  counsel,  hire,  and 
procure  the  said  J.  J.  Knapp  [the  principal)  the  felony  and  mur- 
der aforesaid,  in  manner  and  form  aforesaid,  to  do  and  commit; 
against  the  peace  of  said  commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided.(/i) 

{g)   Cr.  C.  P.  ]  24 ;  2  Chit.  C.  L.  5  ;  lb.  124. 

(Ji)  This  was  the  indictment,  as  we  are  informed  by  Mr.  Davis,  used  against 
the  accessaries  before  the  fact,  in  Com.  v.  Knapp,  9  Pick.  496,  as  principal,  "  in 
the  horrid  and  most  diabolical  murder  of  Joseph  White  ;  upon  which  J.  J.  Knapp 
was  tried,  convicted,  and  executed.  The  words  used  in  the  English  precedents 
are  '  feloniously  and  maliciously  counsel  him,'  &c.,  not  using  the  allegation  in 
the  following  precedent,  '  feloniously,  wilfully,  and  of  their  malice  aforethought.' 
This  indictment  was  drawn  by  the  attorney-general  of  Massachusetts."  Davis' 
Precedents,  41. 

As  there  has  been  no  change  made  by  the  Revised  Statutes  in  the  language 
of  the  law  under  which  the  above  form  was  drawn,  it  may  be  presumed  to  be 
still  good. 

65 


(106)  ACCESSARIES. 

(104)  Against  an  accessary  for  Jiarhoring  a  principal  felon  in  mur- 
der. 
(Frame  the  indictment,  against  the  principal  felon,  according"  to  the 
facts  in  the  case,  and  in  the  usual  form  ;  then  go  on) :  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that  A. 
B.,  late  of  in  the  County  of  laborer,  well   knowing  the 

said  C.  D.  to  have  done,  committed,  and  perpetrated  the  felony 
and  murder  in  manner  and  form  aforesaid,  afterwards,  to  wit,  on 
the  day  of  in  the  year  of  our  Lord  ,  with  force  and 

arms,  at  aforesaid,   in  the  county  aforesaid,  was  accessary 

thereto,  and  him  the  said  C.  D.  did  then  and  there  feloniously  re- 
ceive, harbor,  comfort,  conceal,  and  maintain,  &c.(^)  (  Conclude  as 
above.) 

(105)  Against  an  accessary  to  a  burglary,  after  the  fact. 

{Draw  the  indictment  against  the  principal  according  to  the  prece- 
dents in  burglary  {see  ^'- Burglary^''  post,)  and  thenproceed) :  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
A.  B.,  of  in  the  County  of  laborer,  afterwards,  to  wit, 

on  at  well  knowing  the  said  C.  D.  to  have  done  and 

committed  the  felony  and  burglary  aforesaid,  in  manner  and  form 
aforesaid,  him  the  said  C.  D.  did  then  and  there  knowingly  har- 
bor, conceal,  maintain,  and  assist. (y)  {Conclude  as  in  book  1, 
chap.  3.) 

(106)  Against  principal  and  accessaries  before  the  fact,  in  burglary. 

{Draw  the  indictment  against  the  principal  according  to  the  prece- 
dents in  burglary  {see  '■'■Burglary,^' post),  and  thenproceed) :  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present  that 
A.  B.,  of  in  the  County  of  laborer,  before  the  commit- 

ting of  the  felony  and  burglary  aforesaid,  in  manner  aforesaid,  to 
wit,  on  the  day  of  in  the  year  of  our  Lord   one  thou- 

sand eight  hundred  and         at  aforesaid,  in  the  county  afore- 

said, was  accessary  thereto  before  the  fact,  and  did  feloniously 
and  maliciously  incite,  move,  counsel,  hire,  and  procure,  aid,  abet, 
and  command  the  said  C.  D.  to  do  and  commit  the  said  felony 

(i)  2  Stark.  C.  P.  456.  {j)   Cro.  C.  P.  125. 


1 


ACCESSARIES.  (108) 

and  burglary,  in  manner  and  form  aforesaid.(/c)  {Conclude  as  in 
book  1,  chap.  3.) 

(107)  Accessary  before  the  fact  to  suicide.     First  count  against  sui- 
cide as  principal  in  the  first  degree,  and  against  party  aiding 
him  as  accessary  before  the  fact. 
The  jurors,  &c.,  upon  their  oaths  present,  that  C.  D.,  of 
laborer,  on  the  day  of  now  last  past,  at  aforesaid, 

in  the  County  of  aforesaid,  in  and  upon  himself  did  make  an 

assault;  and  that  he  the  said  C.  D.,  with  a  rope,  about  the  neck 
of  himself,  the  said  C.  D.,  then  and  there  feloniously,  wilfully,  and 
of  his  malice  aforethought  did  put,  fasten,  and  bind  ;  and  that  he 
the  said  C.  D.,  with  the  said  rope,  about  the  neck  of  him  the  said 

C.  D.,  then  as  aforesaid  put,  fastened,  and  bound,  himself  the 
said  C.  D.  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought  did  choke  and  strangle ;  of  which  said  choking  and 
strangling  the  said  C.  D.  then  and  there  instantly  died. 

And  so  the  inquest  aforesaid,  on  their  oath  aforesaid,  do  say 
that  the  said  C.  D,,  in  manner  and  form  aforesaid,  himself,  the 
said  C.  D.,  feloniously,  wilfully,  and  of  his  malice  aforethought 
did  kill  and  murder  against  the  peace  of  said  commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. And  that  one  E.  F.,  late  of  said  laborer,  before  the 
said  self-murder,  by  the  aforesaid  C.  D.  in  manner  and  form  afore- 
said done  and  committed,  that  is  to  say,  on  the  day  and  year 
aforesaid,  him  the  aforesaid  C.  D.,  at  aforesaid,  in  the 
County  of  aforesaid,  to  do  and  commit  the  felony  and  mur- 
der of  himself  aforesaid,  in  manner  and  form  aforesaid,  mali- 
ciously, feloniously,  voluntarily,  and  of  his  malice  aforethought 
did  stir  up,  move,  abet,  counsel,  and  procure,  against  the  peace 
of  the  said  commonwealth,  and  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided. 

(108)  Second  count  against  defendant  for  murdering  suicide. 
And  the  jurors   aforesaid,  on   their  oath  aforesaid,  do  further 
present,  that  the  said  E.  F.,  on  the  day  and  year  aforesaid,  at 
aforesaid,  in  the  county  aforesaid,  in  and  upon  the  said  C. 

D.  did  make  an  assault ;  and  that  he,  the  said  E.  F.,  a  rope  about 

{k)  3  Ch.  C.  L.  1101  ;  C-ro.  C.  P.  124. 

67 


(108)  ACCESSARIES. 

the  neck  of  the  said  C.  D.  then  and  there  feloniously  and  of  his 
malice  aforethought  did  put,  fasten,  and  bind;  and  that  he,  the 
said  E.  F.,  with  the  said  rope  about  the  neck  of  him  the  said  0. 
D.,  then  as  aforesaid  put,  fastened,  and  bound,  him  the  said  CD. 
then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought did  choke  and  strangle;  of  which  choking  and  stran- 
gling he  the  said  C.  D.  then  and  there  instantly  died.  And  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  that  the  said 
E.  F.,  in  manner  and  form  aforesaid,  him  the  said  C.  D.  felo- 
niously, wilfully,  and  of  his  malice  aforethought  did  kill  and  mur- 
der; against  the  peace  of  the  said  commonwealth,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided. (^.) 

{I)  This  is  in  general  construction  the  same  with  the  indictment  in  Com.  r. 
Bowcn,  13  Mass.  357.  The  deceased,  a  convict  in  the  Northampton  prison, 
being  under  sentence  of  death,  the  defendant,  who  was  in  an  adjoining  apart- 
ment, advised  him  the  day  before  the  intended  execution  to  make  away  with 
himselfj  and  thereby  to  elude  the  penalties  of  the  law.  The  advice  was  taken, 
and  the  experiment  being  successful,  the  defendant  was  indicted  in  the  first 
count,  as  a  principal  in  the  second  degree  in  the  homicide,  and  in  the  second 
coitht,  as  its  sole  cause.  The  jury  returned  a  verdict  of  not  guilty,  but  in  the 
charge  of  the  chief  justice  no  doubt  is  expressed  but  that  both  the  counts  were 
proper.  The  law  was  declared  to  be,  that  if  the  persuasions  of  the  defendant 
were  the  cause  of  the  death  of  the  deceased,  the  former  was  as  much  responsible 
for  it  as  if  he  had  himself  struck  the  blow. 

The  inclination  in  England  was  to  declare  the  law  in  the  same  way  (see  Wh.  C. 
L.  §§  118-125)  ;  though  of  late  the  doctrine  has  been  qualified  by  the  position  that 
at  common  law  there  can  be  no  accessaries  to  suicide.  Thus  in  R.  v.  Leddington, 
9  C.  &  P.  79,  where  the  indictment  charged  that  Ann  Burton  murdered  herself 
by  poisoning  herself  with  arsenic,  and  that  the  prisoner  did  feloniously  incite 
and  procure  the  said  Ann  Burton  the  said  felony  and  murder  to  do  and  commit, 
Alderson,  B.,  said  to  the  jury  :  "  You  have  no  authority  to  inquire  into  this 
charge;  this  is  a  case  of  suicide,  and  the  prisoner  is  charged  with  inciting  it; 
that  is  a  case  that  by  law  we  cannot  try.  The  prisoner  must  be  acquitted."  In 
the  case  of  R.  v.  Russell,  1  M.  C.  C.  356,  it  was  held  by  the  fifteen  judges  that 
an  accessary  before  the  fact  to  the  crime  of  self-murder  was  not  triable  at  com- 
mon law,  because  the  principal  could  not  be  tried,  and  that  he  is  not  now  triable 
for  a  substantive  felony  under  the  stat.  7  Geo.  IV.  c.  64,  s.  9,  as  that  statute  was 
to  be  considered  as  extending  to  those  persons  only  who  before  the  statute  were 
liable  either  with  or  after  the  principal,  and  not  to  make  those  liable  who  before 
could  never  have  been  tried.  And  it  was  also  held,  that  if  a  woman  takes  poi- 
son with  intent  to  procure  a  miscarriage,  and  dies  of  it,  she  is  guilty  of  self-mur- 
der, whether  she  was  quick  with  child  or  not,  and  that  the  person  who  furnished 
her  with  the  poison  for  that  purpose  will,  if  absent  when  she  took  it,  be  an  acces- 

58 


ACCESSARIES.  (10^) 

(109)  Agahut  a  defendant  in  murder  ivho  is  an  accessary  hefore  the 
fact  in  one  county  to  a  murder  committed  in  another. [m) 
That  Robert  Carliel,  late,  &c.,  and  James  Irweng,  late,  &c.,  as, 
&c..  at,  &c.,  not  having  the  fear  of  God  before  their  eyes,  but 
being  moved  and  seduced  by  the  instigation  of  the  devil,  with 
force  and  arms,  at  aforesaid,  in  the  county  aforesaid,  in  and 

upon  one  John  Turner,  in  the  peace  of  God  and  our  said  lord  the 
king,  then  and  there  being,  feloniously  and  of  their  malice  afore- 
thought, did  make  an  assault,  and  that  the  aforesaid  Robert  Car- 
liel, with  a  certain  gun,  called  a  pistol,  of  the  value  of  five  shil- 
lings, then  and  there  charged  with  gunpowder  and  one  leaden 
bullet,  which  gun  the  said  Robert  Carliel,  in  his  right  hand,  then 
and  there  had  and  held  in  and  upon  tl\p  aforesaid  John  Turner, 
then  and  there  feloniously,  voluntarily,  and  of  his  malice  afore- 
thought, did  shoot  off  and  discharge,  and  the  aforesaid  Robert 
Carliel,  with  the  leaden  bullet  aforesaid,  from  the  gun  aforesaid, 
then  and  there  sent  out,  the  aforesaid  John  Turner,  in  and  upon 
the  left  part  of  the  breast  of  him  the  said  John  Turner,  then  and 
there  feloniously  struck,  giving  to  the  said  John  Turner  then  and 
there,  with  a  leaden  bullet  as  aforesaid,  near  the  left  pap  of  him 
the  said  John  Turner,  one  mortal  wound  of  the  breadth  of  half  an 
inch  and  depth  of  five  inches,  of  which  mortal  wound  the  afore- 
said John  Turner,  at  London  aforesaid,  in  the  parish  and  ward 
aforesaid,  instantly  died ;  and  that  James  Irweng  feloniously, 
sary  before  the  fact  only,  and  as  such  not  punishable.  Where,  however,  the 
surviving  party  was  actually  aiding  in  the  suicide,  he  becomes  a  principal  therein, 
and  as  such  is  clearly  indictable  for  murder.  R.  v.  Dyson,  E,.  &  R.  523  ;  R.  v. 
Allison,  8  C.  &  P.  523  ;  R.  v.  Russell,  1  Mood.  C.  C.  356  ;  Starkie,  C.  P.  420, 
and  case  in  text.     See  Wh.  C.  L.  §§  118-125. 

(in)  This,  we  are  informed  by  Mr.  Starkie,  was  the  indictment  used  against 
Lord  Sanchar,  upon  which  he  was  convicted  and  executed.  A  full  account  of 
the  proceedings  upon  that  occasion  appears  in  9  Co.  117.  It  is  observable,  that 
though  the  indictment  is  founded  upon  the  stat.  2  &  3  E.  VI.  c.  24,  it  does  not 
conclude  against  the  form  of  the  statute,  nor  does  this  appear  to  be  necessary ; 
for  though,  before  the  statute,  an  accessary  in  one  county  to  a  murder  in  another, 
could  not  have  been  indicted  in  either,  that  was  for  want  of  the  authority  in  the 
jurors  to  inquire,  and  the  statute  merely  remedies  the  defect  without  making  any 
alteration  either  in  the  nature  of  the  offence  or  in  the  measure  of  punishment, 
which  remained  at  common  law.  It  was  deemed  necessary,  says  Mr.  Starkie, 
expressly  to  allege  the  perpetration  of  the  murder  in  the  true  county. 

59 


(110)  ACCESSARIES. 

wilfully,  and  of  his  malice  aforethought,  then  and  there  was  pres- 
ent, aiding,  assisting,  abetting,  comforting,  and  maintaining  the 
aforesaid  Robert  Carliel  to  do  and  commit  the  felony  and  mur- 
der aforesaid,  in  form  aforesaid  ;  and  so  the  aforesaid  Robert  Car- 
liel and  James  Irweng,  him  the  aforesaid  John  Turner,  at  London 
aforesaid,  in  the  parish  and  ward  aforesaid,  in  manner  and  form 
aforesaid,  feloniously,  voluntarily,  and  of  their  aforethought  mal- 
ice, killed  and  murdered;  against  the  peace  of  our  lord  the  now 
king,  his  crown  and  dignity;  and  that  one  Robert  Creighton,  late 
of  the  parish  of  St.  Margaret,  in  Westminster,  in  the  County  of 
Middlesex,  Esq.,  not  having  the  fear  of  God  before  his  eyes,  but 
being  seduced  by  the  instigation  of  the  devil,  before  the  felony  and 
murder  aforesaid,  by  the  aforesaid  Robert  Carliel  and  James  Ir- 
weng, in  manner  and  form  aforesaid  done  and  committed,  that  is 
to  say,  on  the  tenth  day  of  May,  in  the  tenth  year  of  the  reign 
of  our  lord  James,  by  the  grace  of  God,  &c.,  the  aforesaid 
Robert  Carliel,  at  the  aforesaid  parish  of  St,  Margaret,  in  West- 
minster, in  the  County  of  Middlesex  aforesaid, (w)  to  do  and  com- 
mit the  felony  and  murder  aforesaid,  in  manner  and  form  afore- 
said, maliciously,  feloniously,  voluntarily,  and  of  his  aforethought 
malice,  did  stir  up,  move,  abet,  counsel,  and  procure,  against  the 
peace  of  our  said  lord  the  king  that  now  is,  his  crown  and  dig- 
nity. 

(110)   [^For  other  forms  of  indictments  against  accessaries  in  liomi- 
cide,  see  post,  chap.  "  Muj-der.''^'] 

(Ill)   Larceny.     Principal  and  accessary  before  the  fact. 

That  A.  B.,  of  in  the  County  of  laborer,  on  the 

day  of  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  at  ,  one  silver  cup,  of  the  value  of  ten  dollars,  of  the 

goods  and  chattels  of  one  C.  D.,  then  and  there  in  the  possession 

(n)  By  Stat.  4  &  5  Ph.  &  M.  c.  4,  all  persons  that  shall  maliciously  com- 
mand, hire,  or  counsel  any  person  to  commit  petit  treason,  wilful  murder,  &c., 
every  such  offender  being  attainted  or  who  shall  stand  mute,  &c.,  or  challenge 
peremptorily  above  twenty,  &c.,  shall  be  excluded  from  the  benefit  of  clergy. 
Though  it  is  proper  to  introduce  the  words  of  the  statute  into  the  indictment, 
yet  an  indictment  has  been  holden  sufficient  which  wholly  drops  the  words  of  the 
statute.     Starkie,  C.  P.  42l. 

60 


ACCESSARIES.  (113) 

of  the  said  C.  D.  being  found,  feloniously  did  steal,  take,  and 
carry  away,  against,  &c. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  E.  F.,  late  of  in  the  County  of  laborer,  be- 

fore the  committing  of  the  felony  and  larceny  aforesaid,  to  wit, 
on  the  day  of  in  the  year  last  aforesaid,  at  afore- 

said, in  the  county  aforesaid,  did  knowingly  and  feloniously 
incite,  move,  procure,  aid,  abet,  counsel,  hire,  and  command  the 
said  A.  B.  to  do  and  commit  the  said  felony  and  larceny,  in 
manner  and  form  aforesaid,  against,  &c.(o) 

(112)  Against  accessary  for  receiving  stolen  goods. 

(^State  the  offence  agaiiist  the  principal  felon  as  above,  and  then 
proceed  asfolloivs~)  : 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  A.  B.,  of  in  the  County  of  laborer,  after- 

wards, to  wit,  on  the  day  of  now  last  past,  at  B.  afore- 

said, in  the  county  aforesaid,  the  goods  and  chattels  aforesaid, 
to  wit,  one  pair  of  shoes,  of  the  value  of  two  dollars  [here  state 
all  the  articles  found  upon  the  accessary,  their  value,  SfC.)  so  as 
aforesaid  feloniously  stolen,  taken,  and  carried  away,  by  the  said 
A.  B.,  in  manner  aforesaid,  feloniously  did  receive  and  have,  and 
did  then  and  there  feloniously  aid  in  concealing  the  same ;  he 
the  said  C.  D.  then  and  there  well  knowing  the  same  goods  and 
chattels  to  have  been  feloniously  stolen,  taken,  and  carried  away 
as  aforesaid,  against,  &cc.{p) 

(113)  Against  accessary  for  receiving  the  principal  felon. 

(^State  the  offence  against  the  principal  felon  as  in  the  next  preced- 
ing precedent,  and  then  proceed  as  folloivs')  : 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  C.  D.,  of  in  the  County  of  yeoman,  well 

(o)   2  Stark.  C.  P.;  Cro.  C.  C.  124;   Davis'  Prec.  36. 

(jo)  2  Stark.  C.  P.  457.  This  form  is  by  given  by  Mr.  Davis,  as  good  under 
the  Massachusetts  statute.  Precedents,  38.  When  the  principal  has  been  con- 
victed in  one  county,  and  the  stolen  goods  received  in  another,  the  form  will  be 
the  same  as  in  this  precedent,  the  conviction  of  the  principal  being  alleged  con- 
formably to  the  record  in  the  county  where  it  was  had.  For  precedents  for  the 
statutory  offence  of  receiving  stolen  goods,  see  post,  450,  &c. 

61 


(113)  ACCESSAEIES. 

knowing  the  said  A.  B.  to  have  done  and  committed  the  felony 
and  larceny  aforesaid,  in  manner  and  form  aforesaid,  afterwards, 
to  wit,  on  the  day  of  in  the  year  of  our  Lord  one  thou- 

sand eight  hundred  and  at  B.  aforesaid,  in  the  county  afore- 

said, him  the  said  A.  B.  did  then  and  there  knownngly  and  felo- 
niously receive,  harbor,  conceal,  and  maintain,  in  the  larceny  and 
felony  aforesaid,  against,  &c.(g) 

\^The  only  variation  between  indictments  against  accessaries  to  arson, 
mayhem,  robbery,  and  rape,  and  the  form  given  in  the  text,  is  that 
after  the  word  felony,  the  phrase,  "  and  arson,^^  "  and  mayhem,'^ 
"  and  robbery, ^^  "  and  rape,''^  must  be  inserted  as  the  case  may  require. 
For  accessaries  after  the  fact  to  larceny,  see  post,  450,  ^c] 

(<7)  Davis'  Precedents,  3G7;  2  Stark.  C.  P.  456  ;  Cro.  C.  C.  124. 
62 


BOOK   III. 
OFFENCES   AGAINST    THE    PERSON. 


CHAPTER   I. 

HOMICIDE. (a) 


(114)  General  form  of  indictment. 

(115)  Murder.     By  shooting  with  a  pistol. 

(116)  Murder.     By  cutting  the  throat. 

(117)  Murder.     Against  principal  in  the  first  and  in  the  second  degree,  for 

shooting  with  a  pistol. 

((()   See  Wh.  C.  L.  as  follows  :  — 
A    Statutory  Homicide. 
United  States,  §  884. 

Murder  on  the  high  seas,  §  884. 

Manslaughter  on  the  high  seas,  §  885. 

Murder  on  high  seas  where  death  is  on  land,  §  886. 

Murder  or  manslaughter  on  dock-yard,  &c.,  §  887. 

Manslaughter  by  negligence  of  steamboat  officer,  §  888. 
Massachusetts. 

Murder,  §  889. 

Death  by  duel,  §  890. 

Seconds  by  duel,  §  891. 

Manslaughter,  §  893. 
New  York. 

Murder,  §  894. 

Death  by  duel,  §  895. 

Justifiable  and  excusable  homicide,  §§  898,  899. 

Manslaughter  in  the  first  degree,  §  900. 

Manslaughter  in  the  second  degree,  §  901. 

Manslaughter  in  the  third  degree,  §  902. 

Manslaughter  in  the  fourth  degree,  §  904. 

Punishment,  §  911. 
Pennsylvania. 

Murder  in  the  first  and  second  degree,  §§  913,  914. 

63 


HOMICIDE. 

(118)   Against  principal   in   the  first  and  principal  in  the  second  degree. 

Hanging. 
(Ill))  Second  count.     Against  same.     Beating  and  hanging. 

(120)  Murder.     Striking  with  a  poker. 

(121)  Murder.     By  riding  over  with  a  horse. 

(Analysis  of  Homicide  in  Wh.  C.  L.) 

Involuntary  manslaughter,  §  915. 

Murder  in  second  degree  ;  punishment,  §  917. 

Voluntary  manslaughter  ;  punishment,  §  918. 
Virginia. 

Murder  in  the  first  and  second  degree,  §  919. 

Involuntary  manslaughter,  §  920. 

When  death  occurs  out  of  State,  §  921. 

Poisoning  well,  §  922. 

Abortion,  &c.,  §  923. 
Ohio. 

Murder  in  first  degree,  §  924. 

Murder  in  second  degree,  §  925. 

Manslaughter,  §  926. 

Trial  to  be  where  blow  was  struck,  §  927. 

Jury  to  ascertain  degree  of  crime,  §  928. 

Death  by  duel,  §  929. 
B.  Homicide  at  Common  Law. 
I.   General  Definitions,  §  930. 
1st.  Murder,  §  930. 
2d.    Manslaughter,  §  931. 

(a)  Voluntary,  §  932. 

(b)  Involuntary,  §  933. 
3d.    Excusable  Homicide,  §  934. 

(a)  Per  infortuniam,  §  934. 
(i)   Se  defendendo,  §  935. 
4th.  Justifiable  homicide,  §  936. 

(a)  Execution  by  officer  of  law,  §  936. 

(l))  Killing  by  officer  of  justice,  of  person  resisting  him,  §  937. 

(c)  In  prevention  of  a  forcible  and  atrocious  crime,  §  938. 
II.  Requisites  of  Homicide  generally,  §  939. 

1st.  There  must  be  proof  of  the  corpus  delicti,  §  939. 

2d.   It  must  be  shown  that  the  deceased  was  living  when  the  alleged  mor- 
tal blow  was  struck,  §  940. 

3d.    The  death  must  be  traced  to  the  blow,  §  941. 

4th.  If  an  infant,  the  child  must  have  been  born  alive,  §  942. 

5th.  The  homicide  must  be  other  than  in  the  course  of  legitimate  public 
war,  §  943. 
in.  Homicide  viewed,  in  respect  to  the  Intent,  §  944. 

1st.  From  malice  aforethought  express,  where  the  deliberative  purpose 

64 


.IIOMICIDI':. 

(r22)  IVIiirder.     By  drowninjif. 

(123)  Murder.     By  f:trano;ling. 

(124)  Second  count.     By  strangling  and  stabbing  with  unknown  per- 

sons. 

(Anahjsis  of  Homicide  in  Wh.  C.  L.) 
of  the  perpetrator  is  to  deprive  another  of  life,  or  to  do  him  some 
great  bodily  harm,  §  944. 

(a)  From  a  particular  malice  to  the  person  killed,  §  950. 

(?>)   Homicide  from  a  particular  malice  to  one,  which  falls  by  mis- 
take or  accident  upon  another,  §  965. 

(e)   Homicide  from  a  general  malice  or  depraved  inclination  to 
do  evil,  fall  where  it  may,  §  967. 
2d.   Of  liomicide  from  transport  gf  passion,  in  heat  of  blood,  §  969. 

(fl)  What  is  a  sufficient  provocation,  and  up  to  what  extent,  to 
extenuate  the  guilt  of  homicide,  §  970. 

(b)  How  far  the  law  regards  heat  of  blood  in  mitigation  of  homi- 

cide, independently  of  the  question  of  reasonable  jirovoca- 
tion,  as  in  case  of  mutual  combat,  §  987. 

(c)  How  long  the  law  will  allow  for  the  blood  continuing  heated 

under  the  circumstances,  and  what  shall  be  considered  as 
evidence  of  its  having  cooled  before  the  mortal  blow  given, 
§  990. 
3d.    Homicide  in  the  prosecution  of  an  unlawful  act,  when  the  death  is 

collateral,  §  99  7. 
4th.  Homicide  arising  from  impropriety,  negligence,  or  accident,  in  the 
prosecution  of  an  act  lawful  in  itself,  or  intended  as  a  sport  or 
recreation,  §  1002. 

(a)  General  rule  as  to  negligence,  §  1002. 

(b)  Death  from  carelessness,  where  the  death  was  by  no  means  a 

likely  consequence  of  the  careless  act,  §  1003. 

(c)  Carelessness  on  the  public  road,  §  10Q5. 

(d)  Acts  of  omission,  as  well  as  commission,  on  the  jjart  of  those 

charged  with  specific  duties,  §  1011. 

(e)  Unlawful  or  dangerous  sports,  §  1012. 

(_/)  Undue  correction  by  persons  in  authority,  §  1014. 
(g)  Medical  mal-pi'actice,  §  1015. 
(A)  Negligence  on  both  sides,  §  1016. 
5th.  Homicide  from  necessity  in  defence  of  a  m^n's  own  person  or  prop- 
erty, or  of  the  person  or  property  of  others,  §  1019. 

(a)  General  nature  of  right,  §  1019. 

(b)  As  a  general   rule,   the  danger  must  be  actual  and  urgent, 

§  1020. 

(c)  Where  the  defendant  may  slay,  without  retreating  to  the  wall, 

§  1021. 

{d)  An  attack  provoked  or  renewed  by  the  defendant  will  be  no 

defence,  §  1022. 
VOL.  I. -5  65 


HOMICIDE. 

(r2o)  Murder.     By  poisoning  with  arsenic. 

(126)  Murder.     By  burning  a  house  where  the  deceased  was  at  the  time. 

(127)  Second  count.     Averring  a  preconceived  intention  to  kill. 

(128)  Murder.     First  count,  by  choking  against  two  —  one  as  principal  in 

the  first  degree,  and  the  other  in  the  second  degree. 

(129)  Second  count,  by  choking  and  beating.     Against  two  —  one 

as  principal  in  the  first  degree,  the  other  in  second  degree. 

(130)  Murder  by  poisoning.     First  count  with  arsenic,  in  chicken  soup. 

(131)  Second  count.    Against  one  defijndant  as  principal  in  the  first, 

and  the  other  as  principal  in  the  second  degree. 

(Analysis  of  Homicide  in  Wh.  C.  L.) 

(e)  Right  extends  to  defence  of  master,  servant,  parent,  child,  hus- 
band, wife,  or  property,  against  a  felonious  attack,  §  1024. 

(/)  But  not  to  a  defence  against  a  trespass,  §  1025. 

((j)  If  the  apprehension  of  an  immediate  and  actual  danger  to  life 
be  sincere,  though  unreal,  it  is  in  like  manner  a  defence, 
§  1026. 

(h)  Where  one  or  more  persons  must  be  sacrificed  in  order  to 
preserve  the  life  of  others,  §  1028. 
6th.  Homicide  of  or  by  officers  of  justice  or  others  keeping  the   peace, 
§  1030. 

(a)   Of  officers  under  legal  process,  §  1030. 

(h)  By  officers  under  legal  process,  §  1031. 

(c)  Of  officers  or  others  when  the  arrest  is  illegal,  §  1034. 

(d)  By  officers  of  a  foreign  government,  §  1038. 

(ff)  By  or  of  private  citizens  when  attempting  to  prevent  felony, 

§  1039. 
(./")  What  is  sufficient  notice  of  an  officer's  authority,  §  1041. 
V.  Indictment,  §  1052. 

1st.  Time  and  place,  §  1052. 

2d.    "  In  the  peace  of  God,"  §  1055. 

3d.   Name,  §  1056. 

4th.  "Force  and  arms,"  §  1057. 

5th.  Clerical  and  grammatical  errors,  §  1058. 

6th.  Instrument  of  death,  §  1059. 

7th   Assault,  §  1065. 

8th.  Scienter  in  poisoning,  §  1066. 

9th.  "  Strike  and  beat,"  §  106  7. 
10th.  Description  of  wound,  §  1069. 
11th.  Time  of  death,  §  1070. 

12th.  "Feloniously"  and  "  malice  aforethought,"  §  1071. 
13th.  Averment  of  time  and  manner  of  death,  §  1073. 
14th.  Principals  and  accessaries,  §  1074. 
VI.  Murder  in  the  First  and  Second  Degree,  §  1075. 
VII.   Verdict,  §  1119. 

66 


HOMICIDE. 

(132)  Tliird  count.     Against  one  as  principal  and  the  other  as  acces- 

sary before  the  fact. 

(133)  By  placing  poison  so  as  to  be  mistaken  for  medicine. 

(134)  Murder  of  a  child  by  poison. 

(135)  By  mixing  white  arsenic  with  wine,  and  sending  it  to  deceased,  &c. 

(136)  Murder  by  poisoning.    First  count,  mixing  white  arsenic  in  chocolate. 
(13  7)  Second  count.     Mixing  arsenic  in  tea. 

(138)  Murder  by  giving  to  the  deceased  poison,  and  thereby  aiding  her  in 

suicide. 

(139)  Murder  in  the  first  degree  in  Ohio.     By  obstructing  a  railroad  track. 

(140)  Murder  in  the  first  degree  in  Ohio.     By  sending  to  the  deceased  a 

box  containing  an  iron  tube,  gunpowder,  bullets,  &c.,  artfully  ar- 
ranged so  as  to  explode  on  attempting  to  open  it. 

(141)  Murder  in  the  first  degree  in  Ohio.     By  a  father,  chaining  and  con- 

fining his  infant  daughter  several  nights  during  cold  weather  with- 
out clothing  or  fire. 

(142)  Second  count.     Not  alleging  a  chaining. 
(14  2j)   By  stabbing,  under  Ohio  Statute. 

(143)  By  forcing  a  sick  person  into  the  street. 

(144)  Murder  of  an  infant  by  suffocation. 

(145)  Murder  by  stamping,  beating,  and  kicking. 

(146)  Murder  by  beating  Avith  fists  and  kicking  on  the  ground,  no  mortal 

wound  being  discovered. 
(14  7)  For  stabbing,  casting  into  the  sea,  and  drowning  the  deceased  on  the 
high  sea,  &c. 

(148)  Knocking  to  the  ground,  and  beating,  kicking,  and  wounding. 

(149)  Murder  by  striking  with  stones. 

(150)  Murder  by  casting  a  stone. 

(151)  Murder  by  striking  with  a  stone. 

(152)  By  striking  with  an  axe  on  the  neck. 

(153)  By  striking  with  a  knife  on  the  hip,  the  death  occurring  in  another 

State. 

(155)  Murder  by  stabbing  with  a  knife. 

(156)  Murder.     Against  J.  T.  for  shooting  the  deceased,  and  against  A.  S. 

for  aiding  and  abetting. 

(157)  Murder  of  a  bastard  child. 

(158)  Throwing  a  bastard  child  in  a  priv3^ 

(159)  Smothering  a  bastard  child  in  a  linen  cloth. 

(160)  Murder,  in  Pennsylvania,  of  a  bastard  child  by  strangling. 

(161)  Murder.     By  starving  apprentice. 

(162)  Manslaughter  by  neglect.     First  count,  that  the  deceased  was  the 

apprentice  of  the  prisoner,  and   died  from  neglect  in  prisoner  to 
supply  him  with  food,  &c. 

(163)  Second  count,  charging  killing  by  overwork  and  beating. 

(164)  Manslaughter.     Against  a  woman  for  exposing  her  infant  child  so  as 

to  produce  death. 

67 


HOMICIDE. 

(165)  Manslaughter.     By  forcing  an  aged  woman  out  of  her  house  in  the 

night,  tarring,  teathering,  beating,  and  whipping  her. 

(166)  Against  the  keeper  of  an  a?yhim  for  pauper  children,  for  not  supply- 

ing one  of  them  with  proper  food  and  lodging,  whereby  the  child 
died. 

(16  7)  Manslaughter,  by  striking  with  stone. 

(168)  Manslaughter.  By  giving  to  the  deceased  large  quantities  of  spirit- 
uous liquors,  of  which  he  died. 

(IGO)   Against  driver  of  a  cart  for  driving  over  deceased. 

(170)  Manslaughter.     Against  a  husband  for  neglecting  to  provide  shelter 

for  his  wife. 

(171)  Murder,  in  a  duel  fought  without  the  State.     Rev.    Sts.  of  Mass.  ch. 

12.3,  §3. 

(172)  Manslaughter  in  second  degree  against  captain  and  engineer  of  a 

steamboat,  under  New  York  Rev.  Statute,  p.  531,  §  46. 

(173)  Against  the  engineer  of  a  steamboat  for  so  negligently  managing  the 

engine  that  the  boiler  burst  and  thereby  caused  the  death  of  a 
passenger. 

(174)  Against  agent  of  company  for  neglecting  to  give  a  proper  signal  to 

denote  the  obstruction  of  a  line  of  railway,  whereby  a  collision  took 
place  and  a  passenger  Avas  killed. 

(175)  Against  the  driver  and  stoker  of  a  railway  engine,  for  negligently 

driving  against  another  engine,  whereby  the  deceased  met  his 
death. 

(1 76)  Involuntary  manslaughter  in  Pennsylvania,  by  striking  an  infant  with 

a  dray. 

(177)  Murder  on  the  high  seas.    General  form  as  used  in  the  United  States 

Courts. 

(178)  Murder  on  the  high  seas,  by  striking'  with  a  handspike.     Adapted  to 

United  States  Courts. 

(179)  Striking  with  a  glass  bottle,  on  the  forehead,  on  board  an  American 

vessel  in  a  foreign  jurisdiction.    Adapted  to  United  States  Courts. 

(180)  Against  a  mother  lor  drowning  her  child,  by  throwing  it  from  a  steam- 

boat on  Long  Island  Sound. 

Second  count.    Omitting  averment  of  relationship,  and  charg- 
ing the  sex  to  be  unknown. 

(181)  Murder  on  the  high  seas,  with  a  hatchet. 

(182)  Manslaughter  on  the  high  seas. 

Second  count.     Same  on  a  long-boat  belonging  to  J.  P.  V.,  &c. 

(183)  Misdemeanor  in  concealing  death  of  bastard  child  by  casting  it  in  a 

well,  under  the  Pennsylvania  Statute. 

(184)  Same,  where  means  of  concealment  are  not  stated. 

(185)  Endeavor  to  conceal  the  birth  of  a  dead  child  under  the  English 

Statute. 

68 


HOMICIDE.  — GENERAL   REQUISITES   OF    INDICTMENT.      (114) 

(114)  General  Form  of  Indictment. 
That  A.  B.,(a^)  late  of  the  parish  of  C,  in  the  County  of  P., 
laborer,  not  having  the  fear  of  God  before  his  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil, (a^)  on,  &c., 
with  force  and  arms,(/;)  at  the  parish  aforesaid, (c)  in  and  upon 
one  E.  F.,((?)  in  the  peace  of  God  and  of  the  said  commonwealth 
then  and  there  being,(^)  feloniously,  wilfully,  and  of  his  malice 
aforethought,(/)  did  make  an  assaultf/^) ;  and  that  he  the  said  A. 
B.,  with  a  certain  knife(<7)  of  the  value  of  sixpence,(7i)  which  he 
the  said  A.  B.  in  his  right  hand  then  and  there  had  and  held.({) 
him,(y)  the  said  E.  F.,  in  and  upon  the  left  side  of  the  breast  of 
him  the  said  E.  F.,(^)  then  and  there  {I)  feloniously,(/^)  wilfully, 
and  of  his  malice  aforethought,(m)  did  strike(>?),  giving  to  the 
said  E.  F.,  then  and  there,  with  the  knife  aforesaid(o),  by  the 
stroke  aforesaid,  in  manner  aforesaid,  in  and  upon  the  said  left 
side  of  the  breast  of  him(p)  the  said  E.  F.,  one  mortal  wound  of 
the  breadth  of  three  inches,  and  of  the  depth  of  six  inches  \{q) 
of  which  said  mortal  wound  the  said  E.  F.,  from  the  said  third 
day  of  August,  in  the  year  aforesaid,  until  the  fifteenth  day  of 
the  same  month  of  August,  in  the  year  aforesaid,  at  the  parish 
aforesaid,  did  languish,  and  languishing  did  live  ;(r)  on  which 
said  fifteenth  day  of  August,  in  the  year  aforesaid,  the  said  E. 
F.,  at  the  parish  aforesaid,  in  the  county  aforesaid, (r^)  of  the 
wound  aforesaid,  died  ;(.s)  and  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say  that  the  said  A.  B.,  him  the  said  E) 
F.,(.s^)  in  manner  and  form  aforesaid,  feloniously,  wilfully,  and  of 
his  malice  aforethought,(s2)  did  kill  and  murder.(i()  [Conclude 
as  in  book  1,  cliap.  3.)(w) 

(a')  As  the  distinction  between  principal  in  the  first  and  principal  in  second 
degree  is  only  artificial,  a  principal  in  the  second  degree  may  be  convicted 
though  indicted  as  a  principal  in  the  first  degree,  and  vice  versa.  Wh.  C.  L. 
§  129.     State  v.  Cockman,  1  Wins.  (N   C.)  No.  2,  95. 

(cfi)  These  words  are  wholly  unnecessary.  If  included  they  are  rejected  as 
surplusage;  if  excluded  the  want  of  them  is  not  the  subject  of  excei)tion. 

It  is  not  necessary  to  aver  the  defendant  to  be  of  sound  mind.  Fahnestock 
V.  State,  23  Ind.  231. 

Q>)  "  Force  and  arms."  The  use  of  these  words,  is  unnecessary  ;  and  in  one 
instance,  the  omission  of  them  in  an  indictment  for  murder  has  been  expressly 
sanctioned.    Terr.  v.  M'Farlan,  1  Mart.  16.     Wh.  C.  L.  §  403. 

69 


(114)  OFFENCES    AGAINST    THE    PERSON. 

(c)  Where  the  indictment  ch  irged  that  the  defendant,  late  of  B.  County,  "  at 
the  county  aforesaid,"  &c.,  it  was  held  that  this  was  sufficient  to  point  out  the 
place  where  the  offence  was  committed  ;  State  v.  Lamon,  3  Hawks,  175. 

{d)  In  what  way  the  name  of  the  party  injured  must  be  set  forth,  has  been 
already  discussed.     \Vh.  C.  L.  §  233. 

(e)  These  words  do  not  need  proof,  and  may  be  omitted  without  prejudice. 
Arch.  C.  P.  10th  ed.  407;  Wh.  C.  L.  §  1055;  Com.  v.  Murphy,  11  Cush. 
(Mass.),  492. 

(/)  These  words  have  always  been  held  necessary  (Wh.  C  L.  §  1071)  ;  and 
if  the  qualification  of  "  malice  aforethought  "  be  omitted,  the  offence  drops  to 
manslaughter.  In  Arkansas,  however,  it  would  seem  a  conviction  of  murder  can 
rest  on  an  indictment  where  malice  aforethought  is  not  charged  (Anderson  v. 
State,  5  Pike,  445)  ;  and  in  Iowa  it  is  said  to  be  enough  to  aver  "  feloniously,  in- 
tentionally, wilfully,  maliciously,  and  deliberately."   State  v.  Neeley,  '20  Iowa,  108. 

In  Ohio,  it  is  better  to  aver  an  intent  to  kill  or  murder,  and  certainly  to  repeat 
the  words  of  the  statute,  requiring  that  the  act  be  done  "  purposely  and  of  de- 
liberate malice."     See  post,  (139). 

In  Massachusetts,  it  is  not  necessary,  in  indictments  for  poisoning,  to  aver  in- 
tent to  kill.     Com.  V.  liersey,  2  Allen,  1  73. 

(/»)  See  Wh.  C.  L.  §  10G5. 

((/)  The  common  law  rule  in  pleading  the  instrument  of  death  is,  that  where 
the  instrument  laid  and  the  instrument  proved  are  of  the  same  nature  and  char- 
acter, there  is  no  variance  ;  where  they  are  of  opposite  nature  and  character,  the 
contrary.  Thus  evidence  of  a  dagger  will  support  the  averment  of  a  knife,  but 
evidence  of  a  knife  will  not  support  the  averment  of  a  pistol.  A  very  happy  il- 
lustration of  this  distinction  is  found  in  Com.  v.  Haines,  G  Pa.  L.  J.  232.  The 
defendant  was  charged  with  having  erected  a  stuffed  Padily  with  intent  to  libel 
the  Catholic  Irish ;  and  he  endeavored  to  defend  himself  Tjy  proof  that  the  device 
was  a  stuffed  ShelaJi,  and  the  object  was  to  annoy  the  Proleslant  Irish.  The  in- 
structions of  the  court  were  invoked  as  to  whether  there  was  a  variance  ;  and 
Gibson  J.  said  that  if  there  was  a  mere  averment  of  a  Paddy,  and  evidence  of  a 
Shelah,  the  object  and  character  of  the  figures  being  similar,  there  was  no  vari- 
ance; but  that  if  on  the  contrary  they  were  devices  of  an  antagonistic  character, 
the  indictment  could  not  be  supported.  Where  the  method  of  operation  is  the 
same  though  the  instrument  is  different,  no  variance  exists  ;  where  the  former 
is  not  the  case,  the  rule  is  otherwise.  The  same  reasoning  applies  to  indictments 
for  homicide.  Where  the  species  of  death  would  be  different,  as  if  the  indict- 
ment allege  a  stabbing  or  shooting,  and  the  evidence  prove  a  poisoning  or  starv- 
ing, the  variance  is  fatal  (R.  ?'.  Briggs,  1  Mood.  C.  C.  318)  ;  and  the  same  if  the 
indictment  state  a  poisoning,  and  tlie  evidence  prove  a  starving.  Thus  where  an 
indictment  stated  that  the  defendant  assaulted  the  deceased,  and  struck  and  beat 
him  upon  the  head,  and  thereby  gave  him  divers  mortal  blows  and  bruises,  of 
which  lie  died,  and  it  appeared  in  evidence  that  the  death  was  by  the  deceased 
falling  on  the  ground,  in  consequence  of  a  blow  on  the  head  received  from  the 
defendant ;  it  was  holden  that  the  cause  of  the  death  was  not  ])roperly  stated. 
11.  I'.  Thompson,  1  Mood.  C.  C.  139.     But  if  it  be  proved  that  the  deceased  was 

70 


HOMICIDE.  —  GENERAL    REQUISITES    OP   INDICTMENT.        (114) 

killed  by  any  other  instrument,  as  with  a  dagger,  sword,  start',  bill,  or  the  like, 
capable  of  producing  the  same  kind  of"  death  as  the  instrument  stated  in  the  in- 
dictment, the  variance  will  not  be  material.  R.  v.  Mackally,  !)  Co.  67a;  Gilb. 
Ev.  231 ;  R.  V.  Briggs,  1  Mood.  C.  C.  318.  So  if  the  indictment  allege  a  death  by 
one  kind  of  poison,  proof  of  a  death  by  another  kind  of  poison  will  support  the  in- 
dictment, lb.  and  see  2  Hale,  115,  185;  2  Hawk.  c.  23,  s.  84.  An  indictment 
having  charged  that  the  prisoner,  with  both  her  hands  about  the  neck  of  the  de- 
ceased, the  neck  and  throat  of  the  deceased  did  squeeze  and  press,  and  by  such 
squeezing,  &c.,  did  suffocate  and  strangle  the  deceased  ;  and  the  evidence  being 
that  the  prisoner  suffocated  the  deceased  by  placing  one  hand  on  his  mouth  and 
the  other  on  the  back  of  his  head ;  Patteson,  J.  held  that  it  was  sufficient  if  the 
death  was  caused  by  suffocation,  and  that  the  evidence  supported  the  indictment. 
R.  V.  Culkin,  5  C.  &  P.  121.  And  in  another  case  the  offence  being  charged  to 
have  been  committed  with  a  cei'tain  sharp  instrument,  and  the  evidence  was  that 
the  wound  was  partly  torn  and  partly  cut,  and  was  don«  with  an  instrument  not 
sharp,  Parke,  B.  held  the  indictment  proved,  and  said  the  degree  of  sharpness 
was  immaterial.  R.  v.  Grounsell,  7  C.  &  P.  788,  And  where  an  indictment  for  the 
murder  of  a  bastard  cliild  stated  that  the  defendant  forced  and  thrust  moss  and 
dirt  into  its  throat,  mouth,  and  nose,  and  that  by  forcing  and  thrusting  the  moss 
and  dirt  into  the  throat,  mouth,  and  nose  of  the  child,  the  child  was  choked,  &c., 
and  it  appeared  that  the  child  was  not  immediately  suffocated  by  the  moss  and 
dirt,  but  that  the  moss  and  dirt  caused  an  injury  and  inflammation  in  the  throat, 
which  closed  the  passage  to  the  lungs  and  stomach,  of  which  the  child  died ;  it 
was  declared  that  the  evidence  supported  the  indictment,  and  that  it  was  suffi- 
cient to  state  the  proximate  cause  of  the  death,  without  stating  the  intermediate 
process  resulting  from  that  proximate  cause.  R.  v.  Tye,  R.  &  R.  345.  Where 
the  prisoner  was  indicted  for  cutting  the  throat  of  the  deceased,  and  a  surgeon 
proved  that  what  was  technically  called  the  throat  was  not  cut,  as  the  wound 
did  not  extend  so  far  round  the  neck,  Patteson,  J.  held  that  the  indictment 
must  be  understood  to  mean  what  is  commonly  called  the  throat.  R.  v.  Edward, 
6  C.  &  P.  401.  Where  the  indictment  alleged  that  the  defendant  suffocated  the 
deceased  by  placing  her  hand  on  the  mouth  of  the  deceased,  and  the  jury  found 
that  the  death  was  caused  by  suffocation,  but  could  not  say  how  it  was  occa- 
sioned, Denman,  C.  J.  held  the  indictment  proved.  R.  v.  Waters,  7  C.  &  P. 
250,  But  under  an  indictment  for  shooting  with  a  pistol  loaded  with  gunpow- 
der and  a  leaden  bullet,  it  appeared  that  there  was  no  bullet  in  the  room  where 
the  act  was  done,  and  no  bullet  in  the  wound ;  and  it  was  proved  that  the  wound 
might  have  been  occasioned  by  the  Avadding  of  the  j^istol,  BoUand,  B,,  Park 
and  Parke,  J.,  held  the  indictment  not  proved.  See  R.  u.  Hughes,  5  C.  &  P. 
126,  The  same  principle  was  applied  where  an  indictment  charged  that  tlie 
defendant  struck  the  deceased  with  a  brick,  and  it  appeared  that  he  knocked 
the  deceased  down  with  his  fist,  and  that  the  deceased  fell  upon  a  brick  which 
caused  his  death.  R.  v.  Kelly,  1  Mood.  C.  C.  113.  See  to  same  effect.  State  v. 
Jenkins,  14  Rich.  (S.  C.)  215.  In  New  York  a  far  more  liberal  rule  has  been 
announced,  it  having  been  substantially  held  that  the  use  of  a  pistol  might  be 

71 


(114)  OFFENCES    AGAINST   THE   PERSON. 

proved  under  an  indictment  charging  the  weapon  to  have  been  a  knife.  Peo- 
ple V.  Colt,  3  Hill,  432.     See  generally  Wh.  C.  L.  §  1059. 

In  Pennsylvania,  it  is  now,  by  statute,  unnecessary  to  state  the  instrument  of 
death.     Rev.  Act  1860,  pamph.  p.  43.5  ;  Wh   C.  L.  §  1058. 

It  is  enough  to  aver,  under  any  circumstances,  that  the  assault  was  made  "  by 
some  means,  instruments,  and  weapons,  to  the  jurors  unknown."  Wh.  C.  L.  §  1064. 

(h)  The  allegation  of  value  is  now  immaterial,  and  need  not  be  proved.  In 
England,  where  deodands  arc  still  recognized,  it  may  be  necessary  to  introduce 
it ;  though  the  same  object  does  not  exist  in  this  country.  In  the  late  edition 
of  Hale's  Pleas  of  the  Crown,  by  Messrs.  Stokes  and  Ingersoll,  i.  424,  will  be 
found  an  interesting  and  curious  exposition  of  the  law  of  deodands,  and  of  how 
far  it  may  be  made  to  press  on  this  point 

(/)  Though  the  hand  in  which  the  instrument  was  held  is  set  out  in  the  old 
forms,  it  is  clearly  not  necessary  to  prove  it.     Arch.  C.  P.  10th  ed.  407. 

(j)  The  "  him  "  which  is  here  inserted  is  not  usually  introduced  ;  and  in 
several  cases  counts  have  been  sustained  without  it,  where  the  express  exception 
was  taken.  Com.  v.  White,  6  Binn.  183.  See  Wh.  C.  L.  §  1058,  and  postea. 
Perhaps  its  insertion,  however,  leads  to  greater  clearness. 

(k)  It  must  be  averred  in  what  part  of  the  body  the  deceased  was  wounded  ; 
and  therefore,  if  it  be  said  that  the  wound  was  on  the  arm,  hand,  or  side,  without 
saying  whether  the  right  or  the  left,  it  is  bad.  2  Hale,  185 ;  contra,  Whelchell 
?^  State,  23  Ind.  80.  If,  however,  the  wound  be  stated  to  be  on  the  left  side,  and 
proved  to  be  on  the  right,  or  alleged  to  be  on  one  part  of  the  body,  and  proved 
to  be  on  another,  the  variance  is  immaterial.    2  Hale,  186  ;  Wh.  C.  L.  §  1069. 

(I)  The  time  need  not  be  formally  repeated ;  "  then  and  there  "  carries  the 
averment  back  to  the  original  date.  Stout  v.  Com.,  11  S.  &  R.  177.  See  Wh. 
C.  L.  §  272.  Even  if  the  "  then  and  there  "  be  omitted,  it  would  seem  that  the 
court  will  still  give  judgment  on  the  indictment  if  the  grammatical  construction 
be  such  as  to  apply  the  time  at  the  outset  to  the  subsequent  allegations.  State 
V.  Cherry,  3  Murph.  7.  But  where  two  distinct  periods  have  been  averred,  the 
statement  "  then  and  there  "  is  not  enough;  one  particular  time  should  be  averred. 
Storrs  V.  State,  3  Miss.  45 ;  Wh.  C.  L.  §  272. 

(Z')   See  as  to  the  repetition  of"  feloniously,"  Wh.  C.  L.  §  1071. 

(jn)  The  repetition  of  this  phrase  in  this  place  has  been  held  to  be  unneces- 
sary in  North  Carolina.  State  ?>.  Owen,  1  Murph.  452,  though  it  is  much  safer 
to  introduce  it.     Resp.  v.  Honeyman,  2  Dall.  228.     See  Wh.  C.  L.  §  1071. 

(n)  Wherever  death  is  caused  by  physical  violence,  it  is  essential  to  the  in- 
dictment that  it  should  allege  that  the  defendant  struck  the  deceased.  See  5 
Co.  122  a;  2  Hale  184  ;  2  Hawk.  c.  53,  s.  82;  Wh.  C-  L.  §  1067  ;  and  it  must 
also  be  proved,  though  in  Virginia  it  has  been  ruled  that  where  the  instrument 
was  a  dagger,  "  stab,  stick,  and  thrust,"  would  be  held  equivalent  to  strike. 
Gibson  v.  Com.,  2  Va.  Cases  111.  It  is  not  necessary,  however,  to  jjrove  that  he 
struck  him  with  the  particular  instrument  mentioned  in  the  indictment ;  and 
therefore  although  the  indictment  allege  that  the  defendant  did  strike  and  thrust, 
proof  of  a  striking  which  produced  contused  wounds  only  would  maintain  the 
indictment.     Arch.  C.  P.  10th  ed.  486.     See  Wh.  C.  L.  §§  1059-1067. 

72  * 


I 


HOMICIDE.  —  GENERAL    REQUISITES    OF   INDICTMENT.       (114) 

Where  the  indictment  charges  that  A.  struck,  &c.,  and  B.  abetted,  it  is  no 
variance  if  it  appear  that  B.  struck  and  A.  abetted.  Wh.  C.  L.  §  129  ;  State  v. 
Cockman,  1  Wins.  (N.  C.)  No.  2,  95. 

(o)  The  indictment  must  distinctly  state  that  the  blow  was  struck  by  the  in- 
strument alleged.  An  indictment,  however,  charging  "  that  A.  B.  with  a  certain 
stick,  &c.,  in  and  upon  the  head  and  lace  of  C.  D.  then  and  there  did  strike  and 
beat,  giving  to  the  said  C.  D.  then  and  there,  with  the  stick  aforesaid,  in  and 
upon  the  head  and  flice  of  the  said  C,  D.,  several  mortal  wounds,  of  which  said 
several  mortal  wounds  the  said  C.  D.  instantly  died,"  is  good ;  for  there  is  in 
the  first  clause  a  direct  allegation  of  a  stroke,  and  the  particle  gluing,  and  the 
words  (hen  and  thei'e,  connect  the  allegation  with  the  mortal  wound  in  the  sec- 
ond clause.  Gibson  v.  Com.,  2  Va.  Cases  111.  Where  the  allegation  was, 
"  that  the  prisoner  in  and  upon  M.  F.,  &c.,  feloniously,  &c.,  did  make  an  assault 
with  a  certain  gun,  called  a  rifle  gun,  &c.,  then  and  there  charged  with  gun- 
powder and  two  leaden  bullets,  which  said  gun  he,  &c.,  had  and  held,  at  and 
against  the  said  M.  F.,  then,  &c.,  feloniously,  &c.,  did  shoot  off  and  discharge, 
and  that  the  said  M.  F.,  with  the  leaden  bullets  aibresaid,  by  means  of  shooting 
off  and  discharging  the  said  gun,  so  loaded,  to,  at,  and  against  the  said  M.  F., 
as  aforesaid,  did,  &c.,  feloniously,  &c.,  strike,  penetrate,  and  wound  the  said  M. 
F.,  in  and  upon  the  left  side  of  the  said  M.  F.,  &c.,  giving  to  her  the  said  M.  F., 
&c.,  with  the  leaden  bullets  aforesaid,  by  means  of  shooting  off  and  discharging 
the  said  gun,  so  loaded,  to,  at,  and  against  the  said  M.  F.,  and  by  such  stricken, 
&c.,  the  said  M.  F.,  as  aforesaid,  one  mortal  wound  in  and  upon  the  left  side  of 
the  said  M.  F.,"  &c. ;  on  a  motion  to  arrest  the  judgment,  on  the  ground  that 
there  was  no  sufficient  averment  that  the  gun  w^as  shot  off,  or  that  the  contents 
were  discharged,  it  was  said  that  the  inference  seemed  to  be  one  of  absolute  cer- 
tainty, that  the  contents  of  the  gun  were  shot  off  and  discharged,  for  there  was 
nothing  else  to  which  the  words  "  did  shoot  off  and  discharge  "  with  a  gun 
charged  with  gunpowder  and  leaden  bullets,  could  be  applied.  State  v.  Free- 
man, 1  Spears,  57  ;  Wh.  C.  L.  §§  1067-1069. 

(p)  The  insertion  of  the  pronoun  "  him  "  at  this  place,  though  not  usual,  tends 
to  help  the  grammatical  construction. 

(7)  Whatever  once  may  have  been  thought,  it  has  now  been  decided  by  the 
English  judges  that  it  is  not  necessary  to  state,  in  an  indictment  for  murder,  the 
length,  breadth,  or  depth  of  the  wound.  R,  v.  Moseley,  1  Mood.  C.  C.  97  ;  Wh. 
C.  L.  §  1069. 

(r)  The  allegation  of  languishing,  though  proper  in  the  cases  where  there 
actually  is  an  intermission  between  the  blow  and  the  death,  may  be  rejected  as 
surplusage  in  all  others.    Pennsylvania  v.  Bell,  Add.  1 71,  1 75  ;  Wh.  C.  L.  §  1070. 

(ri)  See  3  Ch.  C.  L.  735 ;  Bac.  Abr.  Tit.  Indict,  s.  4. 

(s)  The  dates  here  stated  in  the  indictment  need  not  be  proved  as  laid,  though 
an  indictment  upon  which  it  does  not  appear  that  the  death  happened  within  a 
year  and  a  day  after  the  wound  was  given,  is  fatally  defective ;  because  when 
the  death  does  not  ensue  within  a  year  and  a  day  afler  the  wound  is  inflicted, 
the  law  presumes  that  it  proceeded  from  some  other  cause.  State  v.  Orrell,  1 
Dev.  139  ;  Wh.  C,  L.  §  1073.     All  that  is  necessary  to  be  proved,  in  order  to 

73 


(114)  OFPKNCES    AGAINST    THE    PERSON. 

support  this  part  of  the  indictment,  is,  that  the  deceased  died  of  the  wound  or 
wounds  given  him  by  the  defendant,  within  a  year  and  day  after  he  received 
them;  as  otherwise  the  case  is  not  made  out.  1  Hawk.  c.  23,  s.  90.  Where  it 
appeared  that  the  man's  death  was  caused  by  improper  applications  to  the  wound, 
and  not  by  the  wound  itself,  the  defendant  is  not  responsible  ;  though  if  a  man 
be  wounded,  and  the  wound  turn  to  a  gangrene  or  fever  for  Avant  of  proper  ap- 
plications, or  from  neglect,  and  the  man  die  of  the  gangrene  or  fever ;  or  if  it 
become  fatal  from  the  refusal  of  the  party  to  imdergo  a  surgical  operation  (Reg. 
V.  Holland,  2  M.  &  Rob.  351)  ;  this  is  homicide,  and  murder  or  not,  according  to 
the  circumstances  under  which  the  wound  was  given.  1  Hale,  421.  An  indict- 
ment against  two  defendants,  which  states  the  death  to  be  the  result  of  two  differ- 
rent  injuries  inflicted  by  each  of  the  defendants  sepai-ately,  on  different  days,  is 
bad.     Reg.  v.  Devett,  8  C.  &  P.  639.     See  generally  Wh.  C.  L.  §  1073. 

(«')  In  Michigan,  the  omission  of  the  averment  was  held  not  fatal,  after  con- 
viction of  manslaughter.     Evans  v.  People,  12  Mich.  27. 

(s2)  This  repetition  is  necessary.     State  v.  Heas,  10  La.  R.  195. 

{i)  In  a  late  English  case,  the  second  count  of  the  indictment  charged  J.  O. 
B.  that  he,  "on  the  27th  of  May,  feloniotisly,  and  of  his  malice  aforethought, 
struck  the  deceased  with  a  stick,  of  which  said  mortal  Avound  the  deceased  died 
on  the  29th  of  May  ;  that  T.  R.,  D.  D.,  &c.,  on  the  day  and  year  first  aforesaid, 
at  the  parish  aforesaid,  feloniously,  and  of  their  malice  aforethought,  were  pres- 
ent aiding  and  abetting  the  said  J.  O.  B.  the  felony  last  aforesaid  to  do  and  com- 
mit; "  and  concluding,  "the  jurors,  &c.,  say  that  the  said  J.  O.  B.,  T.  R.,  D.  D., 
&c.,  him  the  deceased,  in  manner  and  form  last  aforesaid,  feloniously,  and  of 
their  malice  aforethought,  did  kill  and  murder."  The  third  count  charged  T. 
R.  that  lie,  "  on  the  27th  day  of  May,  a  certain  stone  feloniously,  and  of  his  malice 
aforethought,  cast  and  threw,  and  which  said  stone,  so  cast  and  thrown,  struck 
deceased,  of  which  mortal  blow  the  deceased  died  on  the  29  th  of  May  ;  and  that 
J.  O.  B.,  D.  D.,  &c.,  Avere  present,  aiding  and  abetting,"  &c.,  as  in  the  first  count. 
It  was  objected,  1st,  that  the  indictment  Avas  inconsistent,  in  charging  the 
principals  in  the  second  degree  with  committing  the  felony  at  the  time  of  the 
stroke,  Avhcreas  it  was  no  felony  till  the  time  of  the  death ;  and,  2d,  that  the 
general  verdict  of  guilty  left  it  uncertain  which  was  the  cause  of  death,  the  stick 
or  the  stone,  and  that  therefore  no  judgment  could  be  entered  on  either.  It  was 
held,  1st,  that  the  form  of  the  indictment  Avas  good ;  and,  2d,  that  the  alleged 
generality  Avas  immaterial,  the  mode  of  death  being  substantially  the  same. 
Reg.  V.  O'Brian,  1  Den.  C.  C.  .9. 

If  several  be  charged  as  principals,  one  as  principal  perpetrator,  and  the 
others  as  present,  aiding  and  abetting,  it  is  not  material  Avhich  of  them  be 
charged  as  principal  in  the  first  degree,  as  having  given  the  mortal  blow,  for  the 
mortal  injury  done  by  any  one  of  those  present  is,  in  legal  consideration,  the  in- 
jury of  each  and  every  one  of  theni.  Fost.  551  ;  1  East,  P.  C.  350  ;  State  v. 
Fley  &  Rochellc,  2  Brev.  338 ;   State  v.  Mair,  1  Coxe,  453.     See  ante,  97,  note. 

Where  the  deceased  Avas  killed  by  a  riotous  attack,  it  is  not  necessary  to  aver 
such  riot,  but  every  participant  is  chargeable  with  the  guilty  blow,  though  he 
may  not  have  struck  it  himself     State  v.  Jenkins,  14  Rich.  (S.  C)  215. 
74 


HOMICIDE.  —  GENERAL    REQUISITES    OP    INDICTMENT.       (ll-l) 

If  the  actual  perpetrator  of  a  murder  should  escape  by  flight,  or  die,  those 
present,  abetting  the  commission  of  the  crime,  may  be  indicted  as  principals ; 
and  though  the  indictment  should  state  that  the  mortal  injury  Avas  committed 
by  him  who  is  absent,  or  no  more,  yet  if  it  be  subsequently  alleged  that  those 
who  are  indicted  were  present  at  the  perpetration  of  the  crime,  and  did  kill  and 
murder  the  deceased,  by  the  mortal  injury  so  done  by  the  actual  perpetrator,  it 
will  be  sufficient.    State  v.  Fley  &  Rochelle,  2  Brev.  338.    See  Wh.  C.  L.  §  1074. 

(m)  In  New  York,  though  a  common  law  indictment  for  murder  ivill  bring  the 
case  within  the  statutoiy  felony,  yet  there  can  be  no  conviction  under  it  unless 
the  offence  comes  up  to  the  grade  assigned  by  the  statute  to  a  felonious  and  in- 
tentional homicide.     People  v.  Enoch,  18  Wend.  159;  Wh.  C.  L.  §§  1119-1123. 

In  Pennsylvania,  Com.  v.  White,  6  Binn.  183,  and  in  North  Carolina,  3  Ire- 
dell, 117,  the  statutory  conclusion  is  unnecessary,  and  on  an  indictment  conclud- 
ing as  at  common  law,  the  statutory  punishment  may  be  inflicted.  Wh.  C.  L. 
§§  483,  509.  In  the  latter  case,  the  question  was  discussed  with  great  fulness  by 
Chief  Justice  Ruffin.  "The  act  of  1777,"  he  said,  "in  requiring  pleas  of  the 
State  to  be  commenced  in  the  district  wherein  the  offence  was  committed,  but 
followed  the  principle  of  the  common  law,  that  the  cognizance  of  crime  is  local. 
It  seems  to  the  court  that  the  subsequent  act  of  1831  was  intended  for  the  sole 
purpose  of  modifying  that  provision  in  particular  cases,  by  conferring  a  jurisdic- 
tion to  try  indictments  for  murder  or  manslaughter,  where  the  whole  offence 
was  not  perpetrated  or  was  not  fully  constituted  within  one  county  or  within  this 
State.  It  provides.  Rev.  Stat.  c.  35,  s.  14, 15,  first,  that  '  in  all  cases  of  felonious 
homicide,  where  the  assault  shall  have  been  committed  in  one  county  of  this 
State,  and  the  person  assaulted  shall  die  in  any  other  county  thereof,  the  offender 
shall  and  may  be  indicted  and  puni.--hed  for  the  crime  in  the  county  where  the 
assault  was  made  ; '  and  in  the  next  place,  that  '  in  all  cases  of  felonious  homi- 
cide, where  the  assault  shall  have  been  committed  in  this  State,  and  the  person 
assaulted  shall  die  without  the  limits  thereof,  the  offender  shall  and  may  be  in- 
dicted and  punished  for  the  crime  in  the  county  where  the  assault  was  made,  in 
the  same  manner,  to  all  intents  and  purposes,  as  if  the  person  assaulted  had  died 
within  the  limits  of  this  State.'  There  is  no  offence  newly  created,  nor  raised  to 
a  higher  offence,  nor  an  additional  punishment  annexed ;  in  any  of  which  cases, 
it  is  admitted,  the  indictment  ought  to  conclude  contra  forviam  slatutl.  In  re- 
spect to  a  case  which  occurs  wholly  in  this  State,  the  act  is  like  that  of  2  &  3 
Ed.  VI.  c.  24,  except  that  the  English  statute  directs  the  trial  to  be  in  the 
county  where  the  person  died.  It  enacts,  that  '  where  any  person  shall  be  felo- 
niously stricken  in  one  county,  and  die  of  the  same  stroke  in  another  county,  an 
indictment  thereof,  found  by  jurors  of  the  county  where  the  death  shall  happen, 
shall  be  as  good  and  effectual  in  law  as  if  the  stroke  had  been  given  in  the  same 
county  where  the  party  shall  die.' 

"  Mr.  East  says,  this  statute  created  no  new  felony,  but  merely  removed  the 
difficulty  which  existed  in  the  trial.  1  East,  C.  L.  365.  Indeed,  it  is  obvious 
that  it  provides  only  a  mode  of  trial  for  a  known  existing  offence,  '  where  any 
person  shall  be  feloniously  stricken,'  and  die  thereof,  without  defining  or  enact- 
ing what  shall  be  such  felonious  striking,  or  what  the  punishment,  but  leaving 

75 


(114)  OFFENCES  AGAINST  THE  PERSON. 

that  to  the  law  as  it  stood.  The  same  observations  apply  to  another  statute  con- 
nected with  this  subject,  that  of  28  Hen.  VIII.  c  15,  which  provides  for  the  case 
of  both  the  stroke  and  death  taking  place  at  sea.  The  words  are,  '  that  all  mur- 
ders, &c.,  committed  in  and  upon  the  sea,  &c.,  shall  be  inquired,  tried,  deter- 
mined, and  judged  in  such  shires  as  shall  be  limited  by  the  king's  commission, 
as  if  such  offence  had  been  committed  upon  the  land.'  So,  likewise,  of  stat.  2 
Geo.  II.  c.  21,  which  embraces  the  case  of  the  stroke  in  England,  and  the  death 
without  it,  or  vice  versa,  of  which  the  language  is,  '  that  an  indictment  thereof, 
found  by  the  jurors,  shall  be  good  and  efTectual,'  &c.  In  prosecutions  authorized 
by  those  acts,  the  indictments,  as  it  seems,  have  always  concluded  at  common 
law.  Arch.  C.  P.  22,"  57,  58;  Dougherty  C.  C.  295;  Cro.  C.  C.  278,  281  ;  3 
Chit.  C.  L.  783.  It  is  true,  offenders  are  thereby  punished,  who  could  not  be 
punished  before.  But  the  reason  why  they  were  not  punished  before  was  solely 
that  no  court  had  authority  to  try  them.  It  was  not  because  the  crime  did  not 
exist ;  for  the  crime,  murder,  is  the  killing  of  any  person  in  the  peace  of  the 
state,  with  malice  aforethought,  and  that  is  constituted  alike  by  killing  with  the 
evil  disposition,  be  the  places  of  assault  and  death  where  they  may.  Language 
of  precisely  the  same  character  is  found  in  our  act.  It  does  not  say  that  killing 
a  person  with  malice,  when  the  stroke  is  in  one  county,  and  the  death  in  another 
county  or  in  another  State,  shall  be  deemed  murder,  or  that  on  conviction  the 
person  shall  be  deemed  a  felon,  and  suffer  death  without  the  benefit  of  clergy. 
It  does  not  profess  to  define  '  felonious  homicide,'  or  to  constitute  that  crime  by 
any  particular  acts,  but  merely  says  that,  in  certain  cases  of  felonious  homicide, 
the  offender  may  be  indicted,  and,  of  course,  tried  and  punished  in  the  county 
where  the  stroke  was  given ;  meaning,  though  it  docs  not,  like  stat.  2  and  3  Ed.  VI., 
expressly  say  so,  '  in  the  same  manner  as  if  the  death  had  happened  in  the  same 
county  where  the  stroke  was  given.'  As  the  act  of  28  Hen.  VIII.  c.  15,  says, 
'  all  murders  committed  on .  the  sea  shall  be  tried  in  a  shire,'  by  commission  of 
oyer  and  terminer,  so  our  act  says,  in  '  all  cases  of  felonious  homicide,  &c.,  where, 
&c.,  the  ofliender  may  be  indicted,  &c.'  Besides,  the  character  of  our  enactment 
may  be  further  deduced  from  the  circumstance  that  it  is  found  in  the  Revised 
Statutes,  in  the  35th  chapter,  on  '  Criminal  Proceedings,'  and  not  in  the  preced- 
ing chapter  on  '  Crimes  and  Punishments.' 

"  It  was,  however,  argued  at  the  bar,  that  it  was  an  essential  part  of  the  defi- 
nition of  murder,  that  the  person  slain  should  be  in  the  peace  of  the  State ;  and 
that,  where  the  death  occurs  in  another  State,  that  requisite  is  deficient  in  the 
crime  at  common  law,  and  thei-efore  it  cannot  be  an  offence  against  this  State, 
unless  made  so  by  the  statute.  And  upon  that  ground  a  distinction  was  taken 
between  the  English  statutes  and  ours,  inasmuch  as  it  was  said  the  statutes  both 
of  Ed.  VI.  and  Hen.  VIII.  provide  for  cases  of  killing,  in  which  the  whole  of  the 
transaction  occurred  either  in  England,  or  Avithin  the  jurisdiction  of  England,  as 
exercised  by  her  admiralty  court.  But  we  think  the  reasoning  is  not  sound.  That 
part  of  the  definition  of  murder  expressed  in  the  terms,  '  on  the  king's  peace,' 
refers  not  to  the  place  of  the  assault  and  death,  but  to  the  state  and  condition  of 
the  person  slain,  as  being  or  not  being  entitled  to  the  protection  of  the  English 
laws ;  for  example,  whether  he  be  a  subject,  or  an  alien  enemy,  or  traitor  in  arms, 

76 


HOMICIDE.  (115) 

(115)  Murder.     By  shooting  ivith  a  pistol,  (y) 
That  A.  B.,  of,  &c,,  yeoman,  on  with  force   and   arms,  at 

in  the  county  aforesaid,  in  and  upon  the  body  of  one  CD., 
in  the  peace  of  said  commonwealth  then  and  there  being,  felo- 
niously, wilfully,  and  of  his  malice  aforethought,  did  make  an  as- 
sault; and  that  the  said  A.  B.,  a  certain  pistol,  of  the  value  of  two 
dollars,  then  and  there  charged  with  gunpowder  and  one  leaden 
bullet,  which  said  pistol,  he  the  said  A.  B.  in  his  right  hand  then 
and  there  had  and  held,  then  and  there  feloniously,  wilfully,  and 
of  his  malice  aforethought,  did  discharge  and  shoot  off,  to,  against, 
and  upon  the  said  C.  D. ;  and  that  the  said  A.  B.  with  the  leaden 
bullet  aforesaid,  out  of  the  pistol  aforesaid,  then   and   there,  by 

or,  in  more  ancient  times,  an  infidel,  or  guilty  of  a  prcemimire.  Then  it  is  also  a 
mistake  to  say  that  the  acts  are  confined  to  cases  in  which  every  part  of  the 
transaction  was  within  the  jurisdiction  of  England,  either  as  being  within  some 
of  her  territories,  or  on  board  of  her  ships.  The  act  of  Geo.  II.,  before  men- 
tioned, provides  for  the  case  of  one  stricken  in  England  and  dying  on  the  sea,  or 
'  at  any  place  out  of  England,'  and  Ave  do  not  find  that  this  has  received  a  differ- 
ent construction  from  that  of  the  previous  statutes.  We  find  an  adjudication, 
however,  upon  another  statute,  which  shows  that  the  question  does  not  depend 
on  the  ground  supposed,  but  that  the  indictment  is  to  conclude  at  common  law, 
although  no  part  of  the  transaction  was  within  the  British  dominions  or  jurisdic- 
tion. By  the  stat.  33  Hen.  VIII.  c  33,  it  is  enacted,  'that  if  any  person,  being 
examined  before  the  king's  council  upon  any  murder,  do  confess  such  offence, 
&c.,  then  in  such  case  a  commission  of  oyer  and  terminer  shall  be  made  to  such 
persons  and  into  such  shires  and  places  as  shall  be  appointed  by  the  king,  for 
the  speedy  trial,  conviction,  or  delivery  of  such  offenders,  Avhich  commissioners 
shall  have  power  and  authority  to  inquire,  hear,  and  determine  such  murders 
within  the  shires  and  places  limited  by  their  commission,  by  such  good  and  law- 
ful men  as  shall  be  returned  before  them,  in  Avhatever  other  shire  or  place  within 
the  king's  dominion,  or  without,  such  offence  of  murder,  so  examined,  was  done 
or  committed.'  In  Rex  v.  Sawyer,  R.  &  R.  C.  C.  294,  a  British  subject  was  in- 
dicted for  the  murder  of  another  British  subject,  '  at  Lisbon,  in  the  kingdom  of 
Portugal,  in  parts  beyond  sea  without  England,'  and  the  indictment  was  at  com- 
mon law.  The  case  Avas  argued  before  the  twelve  judges,  and  they  held  that, 
being  ibr  a  common  law  felony,  committed  abroad,  but  made  triable  in  England 
under  the  33  Hen.  VIII.,  the  indictment  was  right.  That  judgment  is  directly 
in  point,  and  is  decisive  of  this  case  against  the  prisoner. 

"  It  must  therefore  be  certified  to  the  Superior  Court  that  there  is  no  error 
in  the  judgment  given  by  that  court,  in  order  that  further  proceedings  may  be 
had  thereon  according  to  law." 

(v)  3  Chit.  C.  L.  170;  Davis' Precedents,  170.     See  post,  156. 

77 


(IIG)  OFPEiNCES    AGAINST    THE    PERSON. 

force  of  the  gunpowder  aforesaid,  by  the  said  A.  B.  discharged 
and  siiot  off  as  aforesaid,  then  and  there  feloniously,  wilfully,  and 
of  his  malice  aforethouglit,  did  strike,  penetrate,  and  wound  hinri 
the  said  C.  D.  in  and  upon  the  right  side  of  the  belly  of  him  the 
said  C.  D.,  giving  to  him  the  said  C.  D.  then  and  there,  with  the 
leaden  bullet  aforesaid,  so  as  aforesaid  discharged  and  shot  out 
of  the  pistol  aforesaid,  by  the  said  A.  B.,  in  and  upon  the  right 
side  of  the  belly  of  him  the  said  C.  D.,  one  mortal  wound  of  the 
depth  of  four  inches,  and  of  the  breadth  of  half  an  inch  ;  of  which 
said  mortal  wound,  he  the  said  C.  D.  then  and  there  instantly 
died.  And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
say  that  the  said  A.  B.,  him  the  said  C.  D.,  in  the  manner  and 
by  the  means  aforesaid,  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  kill  and  murder.    ( Conclude  as  in  book  1,  chap.  3.) 

(116)  3furder.     By  cutting  the  throat.Qw^ 

That  A.  B.,  of,  &c.,  on  at  in  the  county  aforesaid, 

with  force  and  arms,  in  and  upon  one  C  D.  feloniously,  wilfully, 
and  of  his  malice  aforethought,  did  make  an  assault;  and  that 
the  said  A.  B.,  with  a  certain  knife,  made  of  iron  and  steel,  which 
he  the  said  A.  B.  in  his  right  hand  then  and  there. had  and  held, 
the  throat  of  him  the  said  C.  D.  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  strike  and  cut;  and  that  the  said  A.  B., 
with  the  knife  aforesaid,  by  the  striking  and  cutting  aforesaid,  did 
then  and  there  give  to  him  the  said  C  D.,  in  and  upon  the  said 
throat  of  him  the  said  C.  D.,  one  mortal  wound,  of  the  length  of 
three  inches,  and  of  the  depth  of  two  inches;  of  which  said  mor- 
tal wound  the  said  C  D.,  from  the  said  day  of  to  the 
day  of  aforesaid,  at  aforesaid,  in  the  county  afore- 
said, did  suffer  and  languish,  and  langui:?hing  did  live;  on  which 
said  day  of  aforesaid,  in  the  year  aforesaid,  at 
aforesaid,  in  the  county  aforesaid,  he  the  said  C.  D.,  of  the  said 
mortal  wound,  died.  And  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  A.  B.  him  the  said  C.  D.,  in 
manner  and  form  aforesaid,  then  and  there  feloniously,  wilfully, 
and  of  his  malice  aforethought,  did  kill  and  murder.  ( Conclude 
as  in  chap.  3.) 

(w)   3  Ch.  C    L.  7.5  7;  Davis'  Precedents.  173. 
78 


HOMICIDE.  (117) 

(117)  Murder.  Against  principal  in  the  first  and  principal  in  the 
second(^w^y  degree,  for  shooting  with  a  pistoh^x) 
That  T.  P.  K.,  late  of  the  said  County  of  Monroe,  laborer,  and 
D.  C,  late  of  said  County  of  Monroe,  laborer,  not  having  the  fear 
of  God  before  their  eyes,  but  being  moved  and  seduced  by  the 
instigation  of  the  devil,  on  the  fifth  day  of  October,  in  the  year 
of  our  Lord  eighteen  hundred  and  thirty-five,  with  force  and 
arms,  at  the  said  County  of  Monroe,  in  and  upon  one  P.  S. 
.  .  .  .  in  the  peace  of  God  and  of  the  said  State  of  Ala- 
bama, then  and  there  being,  feloniously,  wilfully,  and  of  their 
malice  aforethought,  did  make  an  assault;  and  that  the  said  T. 
P.  K.,  a  certain  pistol  of  the  value  of  ten  dollars,  then  and  there 
loaded  and  charged  with  gunpowder  and  twenty  leaden  bullets, 
commonly  called  buckshot,  which  pistol  he,  the  said  T.  P.  K.,  in 
his  right  hand,  then  and  there  had  and  held,  to,  against,  and  upon 
the  said  P.,  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  shoot  and  discharge  ;  and  that  the  said  T.  P.  K., 
with  the  leaden  bullets  aforesaid,  out  of  the  pistol  aforesaid,  then 
and  there,  by  force  of  the  gunpowder,  shot  and  sent  forth,  as  afore- 
said, the  aforesaid  P.,  in  and  upon  the  buttocks  of  him  the  said  P., 
a  little  above  the  rectum  of  him  the  said  P.,  then  and  there,  felo- 
niously, wilfully,  and  of  his  malice  aforethought,  did  strike,  pene- 
trate, and  wound,  giving  to  the  said  P.  then  and  there,  with  the 
leaden  bullets  aforesaid,  commonly  called  buckshot,  as  aforesaid, 
so  as  aforesaid  shot,  discharged,  and  sent  forth  out  of  the  pistol 
aforesaid,  by  the  said  T.  P.  K.,  in  and  upon  the  said  buttocks  of 
him,  the  said  P.,  a  little  above  the  rectum  of  him,  the  said  P.,  one 
mortal  wound  of  the  depth  of  six  inches,  and  of  the  breadth  of  half 
an  inch,  of  which  said  mortal  wound  the  said  P.,  from  the  said 
fifth  day  of  October,  in  the  year  of  our  Lord  eighteen  hundred 
and  thirty-five,  until  the  thirteenth  of  the  same  month  of  Octo- 
ber, in  the  year  last  aforesaid,  in  the  county  aforesaid,  did  lan- 
guish, and  languishing  did  live  ;  on  which   said  thirteenth  day  of 

((/;i)  It  should  be  observed  that  the  party  indicted  as  principal  in  the  first 
degree  can  be  convicted  although  it  appear  that  he  was  only  principal  in  the 
second  degree  ;  and  so  of  the  converse.  State  v.  Cockman,  1  Wins.  (N.  C.)  No. 
2,  95;  Wh.  C.  L.  §  129. 

(x)  This  form  was  sustained  in  State  v,  Coleman,  5  Port.  32. 

79 


(118) 


OFFENCES    AGAINST    THE    PERSON. 


October,  in  the  year  last  aforesaid,  the  same  P.,  at  the  county 
aforesaid,  of  the  mortal  wound  aforesaid,  died;  and  that  the 
aforesaid  D.  C,  then  and  there,  feloniously,  wilfully,  and  of  his 
malice  aforethought,  was  present,  aiding,  helping,  abetting  and 
comforting,  assisting  and  maintaining  the  said  T.  P.  K.,  the 
felony  and  murder  aforesaid,  in  manner  and  form  aforesaid,  to  do 
and  commit.  And  so  the  jurors  aforesaid,  upon  their  oaths  afore- 
said, do  say,  that  the  said  T.  P.  K.  and  the  said  D.  C,  the  said 
P.  then  and  there,  in  manner  and  form  aforesaid,  feloniously, 
wilfully,  and  of  their  malice  aforethought,  did  kill  and  murder, 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  State  of  Ala- 
bama. 

(118)  Against  jjrincipal  in  the  first  and  prineijjal  in  the  second  de- 
gree.    Hanging. (x^^ 

That  John  Joyce,  late  of  Philadelphia  County,  yeoman,  and 
Peter  Mathias,  late  of  the  same  county,  yeoman,  not  having  the 
fear  of  God  before  their  eyes,  but  being  moved  and  seduced  by 
the  instigation  of  the  devil,  on  the  eighteenth  day  of  December, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seven, 
with  force  and  arms,  in  the  county  aforesaid,  in  and  upon  one 
Sarah  Cross,  in  the  peace  of  God  and  the  commonwealth,  then 
and  there  being,  feloniously,  wilfully,  and  of  their  malice  afore- 
thought, did  make  an  assault ;  and  that  he  the  said  John  Joyce,  a 
certain  rope  of  the  value  of  five  cents,  on  and  about  the  neck  of 
her  the  said  Sarah  Cross,  then  and  there  feloniously,  wilfully,  and 
of  his  malice  aforethought,  did  fix,  tie,  and  fasten,  and  that  the 
said  John  Joyce  with  the  rope  aforesaid,  so  as  aforesaid  fastened 
on  and  about  the  neck  of  her  the  said  Sarah  Cross,  her  the  said 
Sarah  Cross  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  choke,  suffocate,  and  strangle,  of  which  said 
choking,  suffocating,  and  strangling,  she  the  said  Sarah  Cross 
then  and  there  instantly  died  ;  and  that  the  said  Peter  Mathias,  at 
the  time  of  committing  the  felony  and  murder  aforesaid  by  the 
said  John  .Joyce  in  manner  and  form  aforesaid,  feloniously,  wil- 

(a;>)  Drawn  by  Mr.  J.  B.  M'Kean.  and  sustained  by  the  Supreme  Court  of 
Pennsylvania. 

80 


HOMICIDE. 


(119) 


fully,  and  of  his  malice  aforethought,  was  present,  aiding,  helping, 
and  abetting,  assisting,  comforting,  and  maintaining  the  said  John 
Joyce,  the  felony  and  murder  aforesaid  in  manner  and  form  afore- 
said, to  do,  commit,  and  perpetrate.  And  so  the  inquest  afore- 
said, upon  their  oaths  and  affirmations  aforesaid,  do  say,  that  the 
said  John  Joyce  and  Peter  Mathias,  her  the  said  Sarah  Cross, 
then  and  there  in  manner  and  form  aforesaid,  feloniously,  wilfully 
and  of  their  malice  aforethought,  did  kill  and  murder,  contrary 
to  the  form  of  the  act  of  assembly  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  Commonwealth 
of  Peniisylvania. 

(119)  Second  count.     Against  same.     Beating  and  hanging. 

And  the  inquest  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  further  present  that  the  said  John  Joyce  and  Peter 
Mathias,  not  having  the  fear  of  God  before  their  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  on  the  said 
eighteenth  day  of  December,  in  the  year  aforesaid,  with  force  and 
arms  in  the  county  aforesaid,  in  and  upon  the  said  Sarah  Cross, 
in  the  peace  of  God  and  the  commonwealth  then  and  there 
being,  feloniously,  wilfully,  and  of  their  malice  aforethought,  did 
make  an  assault,  and  that  he  the  said  John  Joyce  with  a  certain 
large  stick  of  no  value,  which  he  the  said  John  Joyce  in  his  right 
hand,  then  and  there  had  and  held,  her  the  said  Sarah  Cross  then 
and  there  feloniously,  wilfully,  and  of  his  malice  aforethought, 
divers  times  did  strike  and  beat,  giving  to  her  the  said  Sarah 
Cross  then  and  there,  by  striking  and  beating  of  her  the  said 
Sarah  Cross  as  aforesaid,  with  the  stick  aforesaid,  in  and  upon 
the  back  part  of  the  head  of  her  the  said  Sarah  Cross,  one  mor- 
tal bruise  ;  and  that  the  said  John  Joyce  also  a  certain  rope  of  the 
value  of  five  cents,  on  and  about  the  neck  of  her  the  said  Sarah 
Cross,  then  and  there  feloniously  and  wilfully,  and  of  his  malice 
aforethought,  did  fix,  tie,  and  fasten,  and  that  the  said  John  Joyce 
with  the  rope  last  aforesaid,  so  as  last  aforesaid,  fixed,  tied,  and 
fastened  on  and  about  the  neck  of  her  the  said  Sarah  Cross,  then 
and  there  did  violently  squeeze,  press,  and  bind  her  the  said  Sarah 
Cross  ;  of  which  said  striking  and  beating  of  her  the  said  Sarah 
Cross  in  and  upon  the  back  part  of  the  head  of  her  the  said  Sarah 
Cross  with  the  stick  aforesaid,  and  also  of  the  squeezing,  press- 

VOL.   I.  —  6  gi 


(120)  OFFENCES    AGAINST    THE    PEUSON. 

ino',  and  binding  of  the  neck  of  her  the  said  Sarah  Cross  with 
the  rope  as  last  aforesaid,  she  the  said  Sarah  Cross  then  and 
there  instantly  died;  and  that  the  said  Peter  Mathias,  at  the  time 
of  committing  the  felony  and  murder  last  aforesaid,  by  the  said 
John  Joyce  in  manner  and  form  last  aforesaid,  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  was  present  aiding,  helping, 
abetting,  and  assisting,  comforting,  and  maintaining  the  said  John 
Joyce,  the  felony  and  murder  last  aforesaid  in  manner  and  form 
last  aforesaid  to  do,  commit,  and  perpetrate. 

And  so  the  inquest  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  further  say,  that  the  said  John  Joyce  and  Peter 
Mathias,  her  the  said  Sarah  Cross  then  and  there  in  manner  and 
form  last  aforesaid,  feloniously  and  wilfully  and  of  their  malice 
aforethought  did  kill  and  murder,  contrary  to  the  form  of  the  act 
of  assembly  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  Commonwx^alth  of  Pennsylvania. 

(120)  3Iurder.     Striking  tvith  a  poker. Qj') 

That  C.  D.,  of  said  B.,  laborer,  on  the  day  of  now 

last  past,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  in  and  upon  one  E.  F.,  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  make  an  assault;  and  that  he  the  said 
C.  D.  then  and  there  with  a  certain  iron  poker,  which  he  the  said 
C.  D.  in  both  his  hands  then  and  there  had  and  held,  the  said  E. 
F.,  in  and  upon  the  back  part  of  the  head  of  him  the  said  E.  F., 
then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  strike,  giving  unto  him  the  said  E.  F.  then  and  there, 
with  the  said  iron  poker,  by  the  stroke  aforesaid,  in  manner  afore- 
said, in  and  upon  the  back  part  of  the  head  of  him  the  said  E. 
F.,  one  mortal  wound,  of  the  length  of  three  inches,  and  of  the 
depth  of  one  inch  ;  of  which  said  mortal  wound,  he  the  said  E. 
F.,  on   the  said  day  of  at   B.  aforesaid,  in  the  county 

aforesaid,  did  languish,  and  languishing  did  live;  on  which  same 
day  of  aforesaid,  at  B.  aforesaid,  in  the  county  afore- 

said, he  the  said  E.  F.,  of  the  said  mortal  wound,  died.  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  C.  D.  him  the  said  E.  F.,  in  manner  and  form  aforesaid,  felo- 

(jj)  3  Chit.  C.  L.  7G1  ;  Davis'  Precedents,  175. 

82 


HOMICIDE.  (12'2) 

niously,  wilfully,  and  of  his  malice  aforethought,  did  kill  and 
murder.      {Conclude  as  in  hook  1,  chapter  3.) 

(121)  Murder.     By  riding  over  with  a  hor8e.(z) 

That  C.  D.,  of  said  B.,  laborer,  on  the  day  of  now 

last  past,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  in  and  upon  one  E.  F.,  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  make  an  assault;  and  that  the  said  C. 
D.  then  and  there  riding  upon  a  horse,  the  said  horse  in  and  upon 
the  said  E.  F.  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  ride  and  force,  and  him  the  said  E.  F.,  with  the 
horse  aforesaid,  then  and  there,  by  such  riding  and  forcing  as 
aforesaid,  did  throw  to  the  ground  ;  by  means  whereof  the  said 
horse,  with  his  hinder  feet,  him  the  said  E.  F.,  so  thrown  to  and 
upon  the  ground  as  aforesaid,  in  and  upon  the  back  part  of  the 
head  of  him  the  said  E.  F.,  did  then  and  there  strike  and  kick, 
thereby  then  and  there  giving  to  him  the  said  E.  F.,  in  atid  upon 
the  back  part  of  the  head  of  him  the  said  E.  F.,  one  mortal  frac- 
ture and  contusion,  of  the  breadth  of  two  inches,  and  of  the 
depth  of  one  inch;  of  which  said  mortal  fracture  and  contusion, 
the  said  E.  F.  then  and  there  instantly  died.  And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  C 
D.  him  the  said  E.  F.,  in  manner  and  form  aforesaid,  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  kill  and  murder. 
{Conclude  as  in  book  1,  chapter  o.) 

(122)  Murder.     By  dro2V7iing. 

That    C.  D.,  of  said  B.,  laborer,  on  the  day  of  now 

last  past,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  in  and  upon  one  E.  F.,  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  make  an  assault;  and  that  the  said  C. 
D.  then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  take  the  said  E.  F.  into  both  the  hands  of  him  the 
said  C.  D.,  and  did  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethouglit,  cast,  throw,  and  push  the  said  E.  F.  into  a 
certain  pond  there  situate,  wherein  there  was  a  great  quantity  of 
water;  by   means  of  which  said  casting,  throwing,  and  pushing 

(2)  Z  Chit.  C.  L.  7G.J  ;   2  Stark.  C.  P.  380;  Davis'  Precedents,  177. 

88 


(123)  OFFENCES    AGAINST    THE    PERSON. 

of  the  said  E.  F.  into  the  pond  aforesaid,  by  the  said  C.  D.,  in 
form  aforesaid,  he  the  said  E.  F.,  in  the  pond  aforesaid,  with 
the  water  aforesaid,  was  theij  and  there  ehoked,  suffocated,  and 
drowned;  of  which  said  choking,  suffocation,  and  drowning,  he 
the  said  E.  F.  then  and  there  instantly  died.  And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  0.  D., 
in  manner  and  form  aforesaid,  him  the  said  E.  F.  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  kill  and  murder. (a) 
{Conclude  as  in  book  1,  chapter  3.) 

(123)  Murder.     By  str angling. (h^ 

That  E.  W.  K.,  late,  &c.,  not  having  the  fear,  &c.,  but  being 
moved,  &c.,  on,  &c.,  in  and  upon  one  J.  D.,  in  the  peace,  &c., 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  make  an 
assault,  and  that  the  said  E.  W.  K.  a  certain  rope  about  the  neck 
of  the  said  J.  D.  then  and  there  feloniously  and  wilfully,  and  of  his 
malice  aforethought,  did  fix,  tie,  and  fasten,  and  that  the  said  E. 
W.  K.  with  the  rope  aforesaid,  (Jiim)  the  said  J.  D.  then  and 
there  feloniously  and  wilfully,  and  of  his  malice  aforethought, 
did  drag,  pull,  choke,  strangle,  and  dislocate  the   neck;  of  which 

(a)   3  Chit.  C.  L.  768;   Davis'  Precedents,  181. 

(h)  This  indictment,  with  a  little  qualification  in  the  first  count,  is  the  same 
with  that  sanctioned  by  the  Supreme  Court  of  North  Carolina  in  State  v.  Ha- 
ney,  2  Dev.  432.  "It  is  lastly  urged,"  said  the  court,  ''that  upon  a  critical  con- 
struction of  the  indictment,  it  does  not  more  appear,  that  Kimbrough  dragged, 
pulled,  and  choked  Davis,  than  that  Davis  dragged,  pulled,  and  choked  Kim- 
brough. However  this  may  be  upon  the  first  count,  I  think  no  such  objection  as 
this  appears  on  the  second.  In  that  count  it  is  charged  that  Kimbrough  made  an 
assault  upon  Davis,  and  that  Kimbrough  placed  a  rope  around  Davis'  neck,  and 
that  the  same  Kimbrough,  by  means  of  said  rope,  the  said  John  Davis  did  choke 
and  strangle ;  and  the  said  Kimbrough,  with  a  dagger,  which  he  then  in  his 
hand  held,  the  said  John  Davis,  in  and  upon  the  belly  of  the  said  John  Davis, 
did  thrust  and  penetrate,  giving  to  him  the  said  John  Davis,  with  the  said  dag- 
ger, in  and  upon  the  belly  of  him  the  said  John  Davis,  a  mortal  Avound,  of  which 
the  said  John  Davis  died  on  the  next  day  ;  with  a  conclusion,  that  he  the  said 
Kimbrough,  the  said  John  Davis  did  kill  and  murder.  Human  ingenuity  can- 
not make  out  of  this,  that  it  stands  indifferent,  whether  Kimbrough  or  Davis 
was  the  actor  in  all  and  every  act  necessary  to  constitute  murder,  or  which  was 
the  agent  and  which  the  sufferer,  not  only  in  the  close  of  the  drama,  but  in 
each  and  every  act  which  led  to  the  catastrophe." 

The  difficulty  raised  as  to  the  first  count  is  obviated  by  the  insertion  of  "  him  " 
in  the  seventh  line.     See  post,  128,  160,  for  similar  form. 
84 


HOMICIDE.  (124) 

said  dragging,  pulling,  choking,  strangling,  and  dislocation  of  the 
neck,  he  the  said  J.  D.  then  and  there  instantly  died.  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  E.  W.  K.,  in,  &c.,  the  said  J.  D.  in  manner  and  form  afore- 
said, feloniously  and  wilfully,  and  of  his  malice  aforethought,  did 
kill  and  murder,  against  the  peace,  &c. 

(124)  Second   count.     By  strangling  and  stabbing  with   unknown 

persons. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  E.  W.  K.  with  divers  other  persons,  &c., 
afterwards,  to  wit,  &c.,  not  having  the  fear,  &c.,  in  and  upon  the 
said  J.  D.  in  the  peace,  &c.,  feloniously,  wilfully,  and  of  their 
malice  aforethought,  did  make  an  assault,  and  that  the  said  E. 
W.  K.  a  certain  rope  about  the  neck  of  the  said  J.  D.  then  and 
there  feloniously,  wilfully,  and  of  his  malice' aforethought,  did 
fix,  tie,  and  fasten  ;  and  that  the  said  E.  W.  K.  by  means  of  said 
rope,  him  the  said  J.  D.  then  and  there  feloniously,  wilfully,  and 
of  his  malice  aforethought,  did  drag,  pull,  choke,  and  strangle ; 
and  that  the  said  E.  W.  K.  with  a  certain  drawn  dagger,  being 
part  of  a  walking  cane,  &c.,  which  he  the  said  E.  W.  K,  in  his 
right  hand  then  and  there  had  and  held,  him  the  said  J.  .D.  in  and 
upon  the  forepart  of  the  belly  and  divers  other  parts  of  the  body 
of  the  said  J.  D.  then  and  there,  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  strike,  thrust,  and  penetrate,  giving  to 
the  said  J.  D.  then  and  there,  with  the  dagger  aforesaid,  in  and 
upon  the  aforesaid  forepart  of  the  belly  and  divers  other  parts  of 
the  body  of  tlie  said  J.  D.,  several  mortal  wounds  of  the  breadth 
of  one  inch,  and  of  the  depth  of  six  inches ;  as  well  of  which  pull- 
ing, dragging,  choking,  and  strangling,  as  also  of  the  striking, 
thrusting,  and  penetrating,  &c.,  he  the  said  J.  D.  from,  &c.,  until, 
&c.,  did  languish,  &c.,  on  which,  &c.,  the  said  J.  D.  in,  &c.,  of 
the  pulling,  dragging,  choking,  and  strangling,  as  well  as  of  the 
mortal  wounds  inflicted  as  aforesaid,  died;  and  that  divers  other 
persons,  &c.  And  so  the  jurors,  &c.,  do  further  say,  that  the 
said  E.  W  K.  and  divers  other  persons,  the  said  J.  D.  then  and 
there  in  manner  and  form  last  aforesaid,  feloniously,  wilfully,  and 
of  their  malice  aforethought,  did  kill  and  murder,  against  the 
peace,  &c. 

85 


(125)  OFFENCES    AGAINST    THE    PERSON. 

(125)  Murder.  By  poisoning  with  arsenic.Qi) 
That  Robert  Sandys,  late  of  the  parish  of  Stockport,  in  the 
County  of  Chester,  laborer,  and  Ann  Sandys,  otherwise  called  Ann 
Devannah,  late  of  the  same  place,  not  having  the  fear  of  God  be- 
fore their  eyes,  but  being  moved  and  seduced  by  the  instigations 
of  the  devil,  wickedly  contriving  and  intending  one  Elizabeth  San- 
dys with  poison,  wilfully,  feloniously,  and  of  their  malice  afore- 
thought to  kill  and  murder,  on  the  twenty-third  day  of  Septem- 
ber, in  the  fourth  year  of  the  reign  of  our  sovereign  lad}^  Victoria, 
with  force  and  arms,  at  the  parish  aforesaid,  in' the  county  afore- 
said, feloniously,  wilfully,  and  of  their  malice  aforethought,  a  large 
quantity  of  a  certain  deadly  poison  called  white  arsenic,  did  give 
and  administer  unto  the  said  Elizabeth  Sandys  with  intent  that 
she  should  take  and  swallow  down  the  same  into  her  body  (they 
then  and  there  well  knowing  the  said  white  arsenic  to  be  a  deadly 
poison),  and  the  said  white  arsenic  so  given  and  administered 
unto  her  by  the  said  Robert  Sandys  and  Ann  Sandys,  otherwise 
called  Ann  Devannah  as  aforesaid,  the  said  Elizabeth  Sandys  did 
then  and  there  take  and  swallow  down  into  her  body  ;  by  reason 
and  by  means  of  which  said  taking  and  swallowing  down  the 
said  white  arsenic  into  her  body  as  aforesaid,  the  said  Elizabeth 
Sandys  became  and  was  mortally  sick  and  distempered  in  her 
body,  of  which  said  mortal  sickness  and  distemper  the  said  Eliz- 
abeth Sandys  from  the  said  twenty-third  day  of  September,  in 
the  year  last  aforesaid,  until  the  twenty-fifth  day  of  the  same 
month,  in  the  same  year,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  did  languish  and  languishing  did  live,  on  which  said 
twenty-fifth  day  of  September,  in  the  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  the  said  Elizabeth  Sandys  of 
the  said  mortal  sickness  died  ;  and  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say  that  the  said  Robert  Sandys  and  Ann 
Sandys,  otherwise  called  Ann  Devannah,  the  said  Elizabeth 
Sandys  in  manner  and  form  aforesaid,  feloniously,  wilfully,  and 

(c)  R.  V.  Sandys,  1  C.  &  M.  345.  A  verdict  of  guilty  was  supported  on  this 
form,  it  being  held  that  the  allegation  "  and  of  the  said  mortal  sickness  died," 
was  good  without  stating  that  the  deceased  died  of  the  poisoning.  See,  for  an- 
other form,  post,  130. 

86 


/^r 


IIOMICIDR.  (1-") 

of  their  malice   aforethought,  did  kill  and   murder,  against  the 
peace  of  our  lady  the  queen,  her  crown  and  dignity. 

(12G)  Murder.     By  hurning  a  house  ivliere  the  deceased  was  at  the 

time.(^d') 

That  S.  C,  late,  &c.,  not  having  the  fear  of  God  before  his 
eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,  on  the  fifth  day  of  April,  one  thousand  eight  hundred  and 
thirty,  with  force  and  arms,  &c.,  at  the  township  aforesaid,  in  the 
county  aforesaid,  and  within  the  jurisdiction  of  this  court,  did 
wilfully  and  maliciously  burn  a  certain  dwelling-house  of  one  R. 
S.,  there  situate,  and  that  one  J.  IL,  of  the  township  and  county 
aforesaid,  within  the  jurisdiction  aforesaid,  in  the  said  dwelling- 
house  then  and  there  being,  before,  at,  and  during  the  said  burn- 
ing, and  was  then  and  there,  by  reason  and  means  of  the  said 
burning  so  committed  and  done  by  the  said  S.  C,  in  manner 
aforesaid,  mortally  burned  and  killed  ;  and  so  the  jurors  afore- 
said, upon  their  oaths  aforesaid,  do  say,  that  the  said  S.  C,  him 
the  said  J.  H.,  in  manner  and  form  aforesaid,  feloniously  and 
wilfully,  and  of  his  malice  aforethought,  did  kill  and  murder, 
against  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  of  this  State,  the  government  and  dignity 
of  the  same. 

(127)  Second  count.     Averring  a  preconceived  intention  to  kill. 

And  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  further 
present,  that  the  said  S.  C,  not  having  the  fear  of  God  before 
his  eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,  and  of  his  malice  aforethought  contriving  and  intending 
one  J.  H.,  there  being  in  a  certain  dwelling-house  of  one  R.  S., 
situate  in  the  township  and  county  aforesaid,  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  to  burn,  kill,  and  murder,  on 
the  same  day  and  year  .aforesaid,  with  force  of  arms,  at  the 
township  aforesaid,  in  the  county  and  within  the  jurisdiction 
aforesaid,  did  wilfully  and  maliciously  set  fire  to  and  burn  the 
said  dwelling-house,  the  said  J.  H.  then  and  there,  before,  at,  and 

(jl)  State  V.  Cooper,  1  Green,  362.  Sec  postea,  1154,  for  the  subsequent  action 
of  the  court  on  this  indictment. 

87 


(128)  OFFENCES    AGAINST    THE    PERSON. 

during'  the  said  burning,  being  in  the  said  dwelling-house,  he  tlie 
said  S.  C,  then  and  there  well  knowing  the  said  J.  H.  to  be  in 
the  said  dwelling-house,  and  that  he  the  said  S.  C,  in  so  setting 
fire  to  and  burning  the  said  dwelling-house  as  aforesaid,  then 
and  there  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  mortally  burn  the  body  of  the  said  J.  H. ;  by  means  of 
which  said  mortally  burning  of  the  body  of  the  said  J.  H.,  as 
aforesaid,  he,  the  said  J.  H.,  on  the  day  and  year  aforesaid,  at 
the  township  aforesaid,  in  the  county  and  within  the  jurisdiction 
aforesaid,  did  die;  and  so  the  jurors  aforesaid,  upon  their  oaths 
aforesaid,  do  say  that  the  said  S.  C,  the  said  J.  H.,  in  manner 
and  form  aforesaid,  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  kill  and  murder,  against  the  form,  &c. 

(128)  Murder.     First  county  hy  cliohing^  agaiiist  two  —  07ie  as  'prin- 
cipal in  the  first  degree^  and  the  other  in  the  second  degree.(^f^ 

That  J.  W.,  late  of  the  county  aforesaid,  yeoman,  and  H.  N., 
late  of  the  county  aforesaid,  widow,  not  having  the  fear  of  God 
before  their  eyes,  but  being  moved  and  seduced  by  the  instiga- 
tion of  the  devil,  on  the  tenth  day  of  April,  in  the  year  one 
thousand  eight  hundred  and  twenty-five,  at  the  county  aforesaid, 
and  within  the  jurisdiction  of  this  court,  with  force  and  arms,  in 
and  upon  one  G.  H.  W.,  in  the  peace  of  God  and  of  the  com- 
monwealth, then  and  there  being,  feloniously,  wilfully,  and  of 
their  malice  aforethought,  did  make  an  assault,  and  that  he  the 
said  J.  W.,  a  certain  muslin  handkerchief  of  the  value  of  twelve 
cents,  about  the  neck  of  him  the  said  G.  H.  W.,  then  and  there 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  fix,  tie, 
and  fasten,  and  that  the  said  J.  W.,  with  the  muslin  handker- 
chief aforesaid,  him  the  said  G.  H.  W.,  then  and  there  feloni- 
ously, wilfully,  and  of  his  malice  aforethought,  did  choke,  suffo- 
cate, and  strangle  ;  of  which  said  choking,  suffocating,  and 
strangling,  he  the  said  G.  H.  W.  then  and  there  instantly  died. 
And  that  she  the  said  H.  N.,  at  the  time  of  the  committing  of 
the  felony  and  murder  aforesaid,  in  manner  and  form  aforesaid, 
feloniously,  wilfully,  and  of  her  malice  aforethought,  was  preset)t 
aiding,  abetting,  and  counselling  the  said  J.  W.,  the  felony  and 

(/)  See  ante,  123,  for  a  similar  form. 


HOMICIDE.  (129) 

murder  aforesaid  to  do  and  commit;  and  so  the  inquest  afore- 
said, upon  Ibeir  oaths  and  affirmation  aforesaid,  do  say,  that 
the  said  J.  W.  and  the  said  H.  N.,  the  said  G.  H.  W.,  in  manner 
and  form  aforesaid,  feloniously,  wilfully,  and  of  their  malice 
aforethought,  did  kill  and  murder,  contrary  to  the  form  of  the 
acts  of  the  general  assembly  in  such  case  made  and  provided, 
and  against,  &c. 

(129)  Second  count,  hy  chohing  and  heating.     Against  two  — one  as 
principal  in  first  degree,  the  other  in  second  degree. 

And  the  inquest  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  further  present,  that  the  said  J.  W.,  and  the  said  H. 
N.,  not  having  the  fear  of  God  before  their  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  on  the  said 
tenth  day  of  April,  in  the  year  one  thousand  eight  hundred  and 
twenty-five,  at  the  county  aforesaid,  and  within  the  jurisdiction 
of  this  court,  with  force  and  arms,  in  and  upon  the  said  G.  H. 
W.,  in  the  peace  of  God  and  of  the  commonwealth  then  and 
there  being,  feloniously,  wilfully,  and  of  their  malice  aforethought, 
did  make  an  assault,  and  that  he  the  said  J.  W.,  a  certain  muslin 
handkerchief  of  the  value  of  twelve  cents,  about  the  neck  of 
him  the  said  G.  H.  W.,  then  and  there  feloniously,  wilfully,  and 
of  his  malice  aforethought,  did  fix,  tie,  and  fasten,  and  that  the 
said  J.  W.  with  the  muslin  handkerchief  aforesaid,  the  neck  of 
him  the  said  G.  H.  W.,  then  and  there  feloniously,  wilfully,  and 
of  his  malice  aforethought,  did  violently  squeeze  and  press;  and 
that  the  said  J.  W.,  with  a  certain  large  stick  of  the  value  of  one 
cent,  which  he  the  said  J.  W.,  then  and  there  in  his  right  hand 
had  and  held,  him  the  said  G.  H.  W.,  in  and  upon  the  right 
side  of  the  head  of  him  the  said  G.  H.  W.,  then  and  there  felo- 
niously, wilfully,  and  of  his  malice  aforethought,  did  strike  and 
beat,  then  and  there  giving  to  the  said  G.  H.  W.,  by  then 
and  there  so  striking  and  beating  him  the  said  G.  H.  W. 
with  the  stick  aforesaid  in  and  upon  the  right  side  of  the  head 
of  the  said  G.  H.  W.,  one  mortal  bruise  of  the  length  of  two 
inches,  and  of  the  breadth  of  one  inch  ;  of  which  said  violent 
squeezing  and  pressing  of  the  neck  of  him  the  said  G.  H.  W., 
as  well  as  of  the  said  striking  and  beating  of  him  the  said  G. 
H.  W.,  in  and  upon  the  right  side  of  the  head  of  him   the  said 

89 


(130)  OFFENCES    AGAINST   THE   PERSON. 

G.  H.  W.,  with  the  stick  aforesaid,  he  the  said  G.  11.  W.  then 
and  there  instantly  died  ;  and  that  she  the  said  H.  N.,  at  the 
time  of  the  committing  of  the  felony  and  murder  last  aforesaid, 
in  manner  and  form  aforesaid,  feloniously,  wilfully,  and  of  her 
malice  aforethought,  was  present  aiding,  abetting,  and  counsel- 
ling the  said  J.  W.  the  felony  and  murder  last  aforesaid  to  do 
and  commit ;  and  so  the  inquest  aforesaid,  upon  their  oaths  and 
affirmations  af  )resaid,  do  say,  that  the  said  J.  W.  and  the  said 
H.  N.,  the  said  G.  H.  W.,  in  manner  and  form  last  aforesaid, 
feloniously,  wilfully,  and  of  their  malice  aforethought,  did  kill 
and  murder,  contrary  to  the  form  of  the  act  of  the  general 
assembly  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  Commonwealth  of  Pennsylvania. 

(130)  Murder  hy  poisoimig.     First  count  with  arsenic^  in  chicken 

soup.{g') 

The  grand  inquest  of  the  Commonwealth  of  Pennsylvania, 
inquiring  for  the  body  of  the  County  of  Bucks,  upon  their  oaths 
and  solemn  affirmations  respectively,  do  present  that  Lucretia 
Chapman,  late  of  the  county  aforesaid,  widow,  otherwise  called 
Lucretia  Espos  y  Mina,  late  of  the  county  aforesaid,  widow,  and 
Lino  Amalia  Espos  y  Mina,  late  of  the  county  aforesaid,  yeo- 
man, otherwise  called  Celestine  Armentarius,  late  of  the  county 
aforesaid,  yeoman,  otherwise  called  Amalia  Gregoria  Zarrier,  late 
of  the  county  aforesaid,  yeoman,  not  having  the  fear  of  God  before 
their  eyes,  but  being  moved  and  seduced  by  the  instigation  of 
the  devil,  and  of  their  malice  aforethought  contriving  and  intend- 
ing a  certain  William  Chapman  .to  deprive  of  his  life,  and  him 
the  said  William  Chapman,  feloniously  to  kill  and  murder,  on 
the  twentieth  day  of  June,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  thirty-one,  and  on  divers  other  days  and  times 
between  the  said  twentieth  day  of  June,  in  the  year  last  aforesaid, 
and  the  twenty-third  day  of  June,  in  the  same  year,  with  force 
and  arms  at  the  county  aforesaid,  and  within  the  jurisdiction  of 
this  court,  did  knowingly,  wilfully,  feloniously,  and  of  their  mal- 
ice aforethought,  mix  and  mingle  certain  deadly  poison,  called 
arsenic,  in  certain  chicken  soup,  which  had  been,  at  divers  days 

(g)  Com.  V.  Mina,  Court  of  O.  &  T.  of  Bucks  County,  for  poisoning,  1S31. 
The  defendant  Mina  was  convicted  and  executed.     See  125,  for  another  form. 

90 


HOMICIDE.  (120) 

and  titnos,  cinrini?  the  time  aforesaid,  prepared  for  the  use  of  the 
said  William  Chapman,  to  be  drunk  by  him  the  said  Wjlliam 
Chapman  (they  the  said  Lncretia  Chapman,  otherwise  called 
Lncretia  Espos  y  Mina,  and  the  said  Lino  Amalia  Espos  y 
Mina,  otherwise  called  Celestine  Armentarius,  otherwise  called 
Amalia  Gregoria  Zarrier,  then  and  there  well  knowing  that  the 
said  chicken  soup  with  which  they,  the  said  Lucretia  Chapman, 
otherwise  called  Lucretia  Espos  y  Mina,  and  the  said  Lino 
Amalia  Espos  y  Mina,  otherwise  called  Celestine  Armentarius, 
otherwise  called  Amalia  Gregoria  Zarrier,  did  so  mix  and  mingle 
the  said  deadly  poisons  as  aforesaid,  was  then  and  there  prepared 
for  the  use  of  the  said  William  Chapman,  with  intent  to  be  then 
and  there  administered  to  him  for  his  drinking  the  same),  and 
the  said  chicken  soup  with  which  the  said  deadly  poison  was  so 
mixed  as  aforesaid,  afterwards,  to  wit,  on  the  said  twentieth  day 
of  June,  in  the  year  last  aforesaid,  and  on  the  said  other  days  and 
times  last  mentioned,  at  the  county  and  within  the  jurisdiction 
aforesaid,  was  delivered  to  the  said  William  Chapman,  to  be 
then  and 'there  drunk  by  him,  the  said  William  Chapman,  and 
he  the  said  W^illiam  Chapman  (not  knowing  the  said  poison  to 
have  been  mixed  with  the  said  chicken  soup)  did,  afterwards,  to 
wit,  on  the  said  twentieth  day  of  June,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  thirty-one,  and  on  the  said  other 
days  and  times  above  mentioned,  there  drink  and  swallow  down 
into  his  body  several  quantities  of  the  said  deadly  poison  so 
mixed  as  aforesaid  with  the  said  chicken  soup,  and  the  said 
William  Chapman  of  the  poison  aforesaid  and  by  the  operation 
thereof  then  and  there  became  sick  and  greatly  distempered  in 
his  body,  of  which  said  sickness  and  distemper  of  body,  occa- 
sioned by  the  said  drinking,  taking,  and  swallowing  down  into 
the  body  of  the  said  William  Chapman  of  the  deadly  poisons 
aforesaid,  so  mixed  and  mingled  in  the  said  chicken  soup  as 
aforesaid,  he  the  said  William  Chapman  from  the  said  several 
days  and  times  on  which  he  has  so  taken,  drunk,  and  swallowed 
down  the  same  as  aforesaid,  until  the  said  twenty-third  day  of 
June,  in  the  year  last  aforesaid,  at  the  county  aforesaid,  and  within 
the  jurisdiction  aforesaid,  did  languish,  and  languishing  did  live, 
on  which  said  twenty-third  day  of  June,  in  the  year  last  aforesaid, 
at  the  county  and  within  the  jurisdiction  aforesaid,  he,  the  said 

91 


(131)  OFFENCES   AGAINST   THE   PERSON. 

William  Chapman,  of  the  poison  aforesaid,  so  taken,  drunk,  and 
swallowed  down  as  aforesaid,  and  of  the  said  sickness  and  dis- 
temper occasioned  thereby,  did  die.  And  so  the  inquest  afore- 
said, upon  their  oaths  and  solemn  affirmations  aforesaid,  do  say, 
that  the  said  Lucretia  Chapman,  otherwise  called  Lucretia  Espos 
y  Mina,  and  the  said  Lino  Amalia  Espos  y  Mina,  otherwise 
called  Celestine  Armentarius,  otherwise  called  Amalia  Gregoria 
Zarrier,  him,  the  said  William  Chapman,  then  and  there  in  the 
manner  and  by  the  means  aforesaid,  feloniously,  wilfully,  and  of 
their  malice  aforethought,  did  kill  and  murder,  contrary  to  the 
form  of  the  act  of  the  general  assembly  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  Common- 
wealth of  Pennsylvania. 

(131)  Second  count.     Against  one  defendant  as  principal  in  the 
first,  and  the  other  as  principal  in  the  second  degree. 

And  the  inquest  aforesaid,  inquiring  as  aforesaid,  upon  their 
oaths  and  solemn  affirmations  aforesaid,  do  further  present,  that 
the  said  Lucretia  Chapman,  otherwise  called  Lucretirf  Espos  y 
Mina,  not  having  the  fear  of  God  before  her  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  and  of  her 
malice  aforethought,  wickedly  contriving  and  intending  the  said 
William  Chapman  to  deprive  of  his  life,  and  the  said  William 
Chapman  feloniously  to  kill  and  murder,  on  the  twentieth  day  of 
June,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
thirty-one,  and  on  divers  other  days  and  times  between  the  said 
twentieth  day  of  June,  in  the  year  last  aforesaid,  and  the  twenty- 
third  day  of  June  in  the  same  year,  with  force  and  arms  at  the 
county  aforesaid,  and  within  the  jurisdiction  of  this  court,  did, 
feloniously,  wilfully,  and  of  her  malice  aforethought,  mix  and 
mingle  certain  deadly  poison,  called  arsenic,  in  certain  chicken 
soup,  which  had  been  at  divers  days  and  times,  during  the  time 
aforesaid,  prepared  for  the  use  of  the  said  William  Chapman,  to 
to  be  drunk  by  him,  the  said  William  Chapman  (she,  the  said 
Lucretia  Chapman,  otherwise  called  Lucretia  Espos  y  Mina, 
then  and  there  well  knowing  that  the  said  chicken  soup  with 
which  she,  the  said  Lucretia  Chapman,  otherwise  called  Lucretia 
Espos  y  Mina,  did  so  mix  and  mingle  the  said  deadly  poison  as 
aforesaid,  was  then  and  there  prepared  for  the  use  of  the  said 
92 


HOMICIDE.  (131) 

William  Chapman,  with  intent  to  be  then  and  there  administered 
to  him  for  his  drinkini^  the  same),  and  the  said  chicken  soup 
with  wliich  the  said  deadly  poison  was  so  mixed  as  aforesaid, 
afterwards,  to  wit,  on  the  said  twentieth  day  of  June,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  thirty-one, 
and  on  the  said  other  days  and  times  last  mentioned,  at  the 
county  and  within  the  jurisdiction  aforesaid,  was  delivered  to 
the  said  William  Chapman,  to  be  then  and  there  drunk  by  him, 
the  said  AVilliam  Chapman,  and  he  the  said  William  Chapman 
(not  knowing  the  said  poison  to  have  been  mixed  with  the  said 
chicken  soup)  did  afterwards,  to  wit,  on  the  said  twentieth  day 
of  June,  in  the  year  last  aforesaid,  and  on  the  said  divers  other 
days  and  times  above  mentioned,  there  drink  and  swallow  down 
into  his  body  several  quantities  of  the  said  deadly  poison  so 
mixed  as  aforesaid  with  the  said  chicken  soup,  and  the  said 
William  Chapman,  of  the  poison  aforesaid,  and  by  the  operation 
thereof,  then  and  there  became  sick  and  greatly  distempered 
in  his  body,  of  which  said  sickness  and  distemper  of  body, 
occasioned  by  the  said  drinking,  taking,  and  swallowing  down 
into  the  body  of  the  said  William  Chapman  of  the  deadly 
poison  aforesaid,  so  mixed  and  mingled  in  the  said  chicken 
soup  as  aforesaid,  he,  the  said  William  Chapman,  from  the 
said  several  days  and  times,  on  which  he  had  so  taken,  drunk, 
and  swallowed  down  the  said  deadly  poison  as  aforesaid, 
until  the  said  twenty-third  day  of  June,  in  the  year  last  afore- 
said, at  the  county  aforesaid,  and  within  the  jurisdiction  afore- 
said, did  languish,  and  languishing  did  live ;  on  which  said 
twenty-third  day  of  June,  in  the  year  last  aforesaid,  at  the  county 
aforesaid,  and  within  the  jurisdiction  aforesaid,  he,  the  said  Wil- 
liam Chapman  of  the  poison  aforesaid  so  taken,  drunk,  and  swal- 
lowed down  as  aforesaid,  and  of  the  said  sickness  and  distemper 
occasioned  thereby,  did  die.  And  that  the  said  Lino  Amalia 
Espos  y  Mina,  otherwise  called  Celestine  Armentarius,  otherwise 
called  Amalia  Gregoria  Zarrier,  then  and  there  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  was  present,  aiding  and 
abetting  the  said  Lucretia  Chapman,  otherwise  called  Lucretia 
Espos  y  Mina,  the  felony  and  murder  aforesaid,  in  manner  and 
form  last  aforesaid,  to  do  and  commit.  And  so  the  inquest  afore- 
said, upon  their  oaths  and  solemn  atlirmations  aforesaid,  do  say, 

93 


(132)  OFFENCES    AGAINST   THE    PERSON. 

that  the  said  Lncrotia  Chapman,  otherwise  called  Lncretia  Espos 
y  Mina,  and  the  said  Lino  Amalia  Espos  y  Mina,  otherwise  called 
Celestine  Armentarius,  otherwise  called  Amalia  Gregoria  Zarrier, 
him  the  said  AVilliam  Chapman,  then  and  there,  in  the  m.anner 
and  form  last  aforesaid,  felonionsly,  wilfully,  and  of  their  malice 
aforethought,  did  kill  and  murder,  contrary  to  the  form  of  the  act 
of  assembly  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  Commonwealth  of  Pennsylvania. 

(132)   Third  coimt.     Against  one   as  principal^  aiid  the  other  as 
accessary  before  the  fact. 

And  the  inquest  aforesaid,  inquiring  as  aforesaid,  upon  their 
oaths  and  solemn  affirmations  aforesaid,  do  further  present,  that 
the  said  Lucretia  Chapman,  otherwise  called  Lucretia  Espos 
Y  Mina,  not  having  the  fear  of  God  before  her  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  and  of  her 
malice  aforethought,  contriving  and  intending  a  certain  William 
Chapman  to  deprive  of  his  life,  and  the  said  William  Chapman, 
feloniously,  wilfully,  and  of  her  malice  aforethought,  to  kill  and 
murder  witli  poison,  on  the  twentieth  day  of  June,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  thirty- one,  and  on 
divers  other  days  and  times,  between  the  said  twentieth  day  of 
June,  in  the  year  last  aforesaid,  and  the  twenty-third  day  of  June 
in  the  same  year,  with  force  and  arms,  at  the  county  aforesaid, 
and  within  the  jurisdiction  of  this  court,  did  knowiugly,  wilfully, 
feloniously,  and  of  her  malice  aforethought,  mix  and  mingle  cer- 
tain deadly  poison,  called  arsenic,  in  certain  chicken  soup,  which 
had  been  at  divers  days  and  times,  during  the  time  aforesaid, 
prepared  for  the  use  of  the  said  William  Chapman,  to  be  drunk 
by  him,  the  said  William  Chapman  (she,  the  said  Lucretia 
Chapman,  otherwise  called  Lucretia  Espos  y  Mina,  then  and 
there,  well  knowing  that  the  said  chicken  soup  with  which  she, 
the  said  Lucretia  Chapman,  otherwise  called  Lucretia  Espos  y 
Mina,  did  so  mix  and  mingle  the  said  deadly  poison  as  aforesaid, 
was  then  and  there  prepared  for  the  use  of  the  said  William 
Chapman,  with  intent  to  be  then  and  there  administered  to  the 
said  William  Chapman  for  his  drinking  the  same),  and  that  the 
said  William  Chapman  afterwards,  to  wit,  on  the  twentieth  day 
of  June,  in  the  year  last  aforesaid,  and  on  the  said  other  days 
94 


HOMICIDE.  (132) 

and  times  last  mentioned,  at  the  county  aforesaid,  and  within 
the  jurisdiction  aforesaid,  did  take,  drink,  and  swallow  down  into 
his  body  several  quantities  of  the  said  chicken  soup,  with  which 
the  said  arsenic  was  so  mixed  and  mingled  by  the  said  Lucretia 
Chapman,  otherwise  called  Lucretia  Espos  y  Mina  as  aforesaid 
(he  the  said  William  Chapman,  at  the  time  he  so  took,  drank, 
and  swallowed  down  into  his  body  the  said  chicken  soup,  not 
knowing  there  was  any  arsenic  or  any  other  poisonous  or  hurt- 
ful ingredient  mixed  or  mingled  with  the  said  chicken  soup),  by 
means  whereof  he,  the  said  William  Chapman,  then  and  there 
became  sick  and  greatly  distempered  in  his  body,  and  the  said 
William  Chapman,  of  the  poison  aforesaid  so  by  him  taken, 
drunk,  and  swallowed  as  aforesaid,  and  of  the  sickness  occa- 
sioned thereby,  from  the  said  several  days  and  times  on  which 
he,  the  said  William  Chapman,  had  so  takers,  drunk,  and  swal- 
lowed down  the  same  deadly  poison  as  aforesaid,  until  the  said 
twenty-third  day  of  June,  in  the  year  last  aforesaid,  at  the  county 
and  within  the  jurisdiction  aforesaid,  did  languish,  and  languish- 
ing did  live ;  on  which  said  twenty-third  day  of  June,  in  the  year 
last  aforesaid,  at  the  county  and  within  the  jurisdiction  aforesaid, 
he  the  said  William  Chapman,  of  the  poison  aforesaid,  so  by  him 
taken,  drank,  and  swallowed  down,  and  of  the  sickness  and  dis- 
temper occasioned  thereby,  did  die. 

And  that  the  aforesaid  Lino  Amalia  Espos  y  Mina,  otherwise 
called  Celestine  Armentarius,  otherwise  called  Amalia  Gregoria 
Zarrier,  not  having  the  fear  of  God  before  his  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  before  the 
said  felony  and  murder  committed,  to  wit,  on  the  said  twentieth 
day  of  June,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  thirty-one,  at  the  county  aforesaid,  and  within  the  jurisdic- 
tion of  this  court,  with  force  and  arms,  feloniously,  wilfully,  and 
of  his  malice  aforethought,  did  incite,  instigate,  stir  up,  counsel, 
direct,  advise,  command,  aid,  abet,  move,  and  procure  her,  the  said 
Lucretia  Chapman,  otherwise  called  Lucretia  Espos  y  Mina,  the 
felony  and  murder  aforesaid,  in  manner  and  form  aforesaid,  to 
do  and  commit. 

And  so  the  inquest  aforesaid,  upon  their  oaths  and  solemn 
affirmations  aforesaid,  do  say,  that  the  said  Lucretia  Chapman, 
otherwise  called   Lucretia  Espos  v   INIina,  him  the  said  William 

95 


(133)  OFFENCES  AGAINST  THE  PERSON. 

Chapman,  then  and  there,  in  manner  and  form  last  aforesaid, 
feloniously,  wilfully,  and  of  her  malice  aforethought,  did  kill  and 
murder;  and  that  he,  the  said  Lino  Amalia  Espos  y  Mina,  oth- 
erwise called  Celestine  Armentarius,  otherwise  called  Amalia 
Gregoria  Zarrier,  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, in  manner  and  form  aforesaid,  at  the  county  aforesaid, 
and  within  the  jurisdiction  of  this  court,  her  the  said  Lucretia 
Chapman,  otherwise  called  Lucretia  Espos  y  Mina,  did  aid, 
abet,  counsel,  direct,  advise,  and  instigate  the  felony  and  murder 
aforesaid,  in  manner  and  form  aforesaid,  to  commit  and  per- 
petrate, contrary  to  the  form  of  the  act  of  assembly  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of  the 
Commonwealth  of  Pennsylvania. 

(183)  By  placing  poison  so  as  to  be  mistaken  for  medicine. (^h) 

That  C.  D.,  of  said  B.,  laborer,  feloniously,  and  of  his  malice 
aforethought,  devising  and  intending  one  E.  F.  to  poison,  kill, 
and  murder,  on  the.        day  of  now  last  past,  with  force  and 

arms,  at  B.  aforesaid,  in  the  county  aforesaid,  a  certain  quantity 
of  arsenic,  to  wit,  two  drachms  of  arsenic,  being  a  deadly  poison, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  put, 
infuse,  mix  and  mingle  in  and  together,  with  water,  he  the  said 
C.  D.  then  and  there  well  knowing  the  said  arsenic  to  be  a 
deadly  poison  ;  and  that  the  said  C.  D.  the  said  arsenic,  so  as 
aforesaid  put,  infused  in,  and  mixed  and  mingled  in  and  together 
with  water,  into  a  certain  glass  phial,  did  put  and  pour;  and  the 
said  glass  phial,  with  the  said  arsenic  put,  infused  in,  and  mixed 
and  mingled  in  and  together  with  water  as  aforesaid  contained 
therein,  then  and  there,  to  wit,  on  the  day  of  in  the 

year  aforesaid,  with  force  and  arms,  at  B.  aforesaid,  feloniously, 
wilfully,  and  of  his  malice  aforethought,  in  the  lodging  room  of 
the  said  E.  F.  did  put  and  place,  in  the  place  and  stead  of  a 
certain  salutary  medicine  then  lately  before  prescribed  and  made 
up  for  the  said  E.  F.,  and  to  be  taken  by  him  the  said  E.  F.,  he 
the  said  C.  D.  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  intending  that  the  said  E.  F.  should  drink 
and  swallow  down  into  his  body  the  said  arsenic,  put,  infused, 
mixed  and  mingled  in  and  tos;ether  with  water  as  aforesaid,  con- 

(/i)   Cro.  C.  A.  297-9;  2  Stark.  C.  P.  369;  Chit.  C.  L.  774;  Davis'  Free.  183. 

96 


HOMICIDE.  (133) 

tained  in  the  said  glass  phial,  by  mistaking  the  sanne  as  and  for 
the  said  salutary  medicine,  so  prescribed  and  made  up  for  the 
said  E.  F.,  and  to  be  by  him  the  said  E.  F.  taken  as  aforesaid. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do- further 
present,  that  the  said  E.  F.,  not  knowing  the  said  arsenic,  put, 
infused  in,  and  mixed  together  with  water  as  aforesaid,  contained 
in  the  said  glass  phial,  so  put  and  placed  by  the  said  C.  D.,  in 
the  lodging  room  of  the  said  E.  F.,  in  the  place  and  stead  of  the 
said  salutary  medicine,  then  lately  before  prescribed  and  made 
up  for  the  said  E.  F.,  to  be  taken  by  him  the  said  E.  F.,  in  man- 
ner aforesaid,  to  be  a  deadly  poison,  but  believing  the  same  to 
be  the  true  and  real  medicine,  then  lately  before  prescribed  and 
made  up  for,  and  to  be  taken  by  him  the  said  E.  F.,  afterwards, 
to  wit,  on  the  same  day  of  in  the  year  aforesaid,  at  B. 

aforesaid,  the  said  arsenic,  so  as  aforesaid  put,  infused  in,  and 
mixed  together  with  water,  by  the  said  C.  D.,  as  aforesaid,  con- 
tained in  the  said  glass  phial,  so  put  and  placed  by  the  said  C. 
D.,  in  the  lodging  room  of  him  the  said  E.  F.  in  the  place  and 
stead  of  the  said  medicine,  then  lately  before  prescribed  and 
made  up  for  the  said  E.  F.,  he  the  said  E.  F.  did  take,  drink,  and 
swallow  down  into  his  body  ;  by  means  of  which  said  taking, 
drinking,  and  swallowing  down  into  the  body  of  him  the  said  E. 
F.  of  the  said  arsenic,  so  as  aforesaid  put,  infused  in,  and  mixed 
together  with  water  by  the  said  C.  D.  as  aforesaid,  he  the  said 
E.  F.  then  and  there  became  sick  and  distempered  in  his  body  ; 
of  which  sickness  and  distemper  of  body,  occasioned  by  the  said 
taking,  drinking,  and  swallowing  down  into  the  body  of  him  the 
said  E.  F.,  and  of  the  said  arsenic,  so  as  aforesaid  put,  infused 
in,  and  mixed  together  with  water  by  the  said  C.  D.  as  aforesaid, 
he  the  said  E.  F.  on  the  said  day  of  in  the  year  afore- 

said, at  B.  aforesaid,  in  the  county  aforesaid,  died.  And  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said 
C.  J),  him  the  said  E.  F.,  in  manner  and  form  aforesaid,  feloni- 
ously, wilfully,  and  of  his  malice  aforethought,  did  poison,  kill, 
and  murder.     [Conclude  as  in  book  1,  chapter  3.) 

VOL.  I.  — 7  97 


(135)  OFFENCES    AGAINST    THE    PERSON. 

(134)  Murder  of  a  cidldhy  pouon.Qi) 
That  C.  M.,  &c.,  contriving  and  intending  to  kill  and  nriurder 
one  G»  M.,  &c.,  on  the  thirty-first  day  of  March,  in  the  third  year 
of  the  reign  of  her  present  majesty,  upon  the  said  G.  M.,  felo- 
niously, &c.,  did  make  an  assault,  and  that  the  said  C.  M.,  a  large 
quantity,  to  wit,  half  an  ounce  weight,  of  a  certain  deadly  poison 
called  laudanum,  feloniously,  &c.,  did  give  and  administer  unto 
.the  said  G.  M.  with  intent  that  he  should  take  and  su^allow  the 
same  down  into  his  body  (she  the  said  C.  M.  then  and  there  well 
knowing  the  said  laudanum  to  be  a  deadly  poison),  and  the  said 
G.  M.  the  said  laudanum  so  given  and  administered  unto  him  by 
the  said  C.  M.  as  aforesaid,  did  take  and  swallow  down  into  his 
body  ;  by  reason  and  by  means  of  which  said  taking  and  swal- 
lowing down  the  said  laudanum  into  his  body,  as  aforesaid,  the 
said  G.  M.  became  and  was  mortally  sick  and  distempered  in  his 
body,  of  which  said  mortal  sickness  and  distemper  the  said  G.  M. 
from,  &c.,  till,  &c.,  did  languish,  &c.,  and  died.  [Conclude  as  in 
hook  1,  chapter  3.) 

(136)  Bi/  inixing  white  arsenic  with  wine  and  sending  it  to   de- 

ceased^ ^c.(^j') 

That  A.  B.,  late  of,  &c.,  of  his  malice  aforethought,  contriving 
and  intending  one  C.  D.,  with  poison,  feloniously  to  kill  and 
murder,  on  with  force  and  arms,  at  a  large  quantity  of 

white  arsenic,  being  a  deadly  poison,  with  a  certain  quantity  of 
wine,  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
mix  and  mingle  ;  he  the  said  A.  B.  then  and  there  well  knowing 
the  said  white  arsenic  to  be  a  deadly  poison  ;  and  that  the  said 
A.  B..  afterwards,  to  wit,  on  the  day  of  at  aforesaid, 

the  poison  aforesaid,  so  as  aforesaid  mixed  and  mingled  with  the 
wine  aforesaid,  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  send  to  her  the  said  C.  D.  to  take,  drink,  and  swal- 
low down.;  and  that  the   said    C.  D.,   not  knowing  the  poison 

{{)  K  V.  Michael,  9  C.  &P.  35G  ;  2  Mood.  C.  C.  120.  The  prisoner  purchased 
a  bottle  of  laudanum,  and  directed  the  person  who  had  charge  of  the  chikl  to 
give  it  a  teaspoonful  every  night.  The  person  did  not  do  so,  but  another 
child  got  hold  of  the  poison,  and  gave  it  to  the  deceased,  who  died  of  it.  A 
conviction  was  sustained  by  the  judges. 

(/)  3  Chit.  C.  L.  77G;    Davis'  Precedents,  185. 

98 


HOMICIDE.  (136) 

aforesaid  in  the  wine  aforesaid  to  have  been  mixed  and  mingled 
as  aforesaid,  afterwards,  to  wit,   on  at  aforesaid,  the 

said  poison,  so  as  aforesaid  mixed  and  mingled,  by  the  per- 
suasion and  procurement  of  the  said  A.  B.,  did  take,  drink,  and 
swallow  down  ;  and  thereupon  ^he  said  C.  D.,  by  the  poison 
aforesaid,  so  mixed  and  mingled  as  aforesaid  by  the  said  A.  B., 
and  so  taken,  drank,  and  swallowed  down  as  aforesaid,  became 
then  and  there  sick  and  distempered  in  her  body,  and  the  said  C. 
D.  of  the  poison  aforesaid,  and  of  the  sickness  and  distemper  oc- 
casioned thereby,  from  the  said  day  of  until  the 
day  of  at  aforesaid,  in  the  county  aforesaid,  did  lan- 
guish, and  languishing  did  live;  on  which  said  day  of 
she  the  said  C.  D.,  at  aforesaid,  in  the  county  aforesaid,  of 
the  poison  aforesaid,  and  of  the  sickness  and  distemper  thereby 
occasioned  as  aforesaid,  died.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say  that  the  said  A.  B.  her  the  said  C. 
D.,  in  manner  and  form,  and  by  the  means  aforesaid,  then  and 
There  feloniously,  wilfully,  and  of  his  malice  aforethought,  did  kill 
and  murder.     (Conclude  as  in  book  1,  chapter  3.) 

(136)  31urder  by  poisoning.     First  count.,  mixing  white  arsenic  in 

chocolate.(Jc) 

That  J.  E.,  late  of  Lycoming  County  aforesaid,  laborer,  not 
having  the  fear  of  God  before  his  eyes,  but  being  moved  and 
seduced  by  the  instigations  of  the  devil,  and  of  his  malice  afore- 
thought, wickedly  contriving  and  intending  a  certain  C.  E.  with 
poison,  wilfully,  feloniously,  and  of  his  malice  aforethought,  to 
kill  and  murder,  on  the  fourteenth  day  of  October,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  thirty-five,  and  on  divers 
other  days  and  times  between  the  said  fourteenth  day  of  Octo- 
ber, in  the  year  last  aforesaid,  and  the  seventeenth  day  of  Oc- 
tober, in  the  year  last  aforesaid,  with  force  and  arms,  at  Lycom- 
ing County  aforesaid,  did,  knowingly,  wilfully,  and  feloniously, 
and  of  his  malice  aforethought,  put,  mix,  and  mingle  certain 
deadly  poison,  to  wit,  white  arsenic,  in  certain  chocolate*which 
had  been  at  divers  days  and  times  during  the  time  aforesaid,  pre- 
pared for  the  use  of  ythe  said  C.  E.,  to  be  drunk  by  her  the  said 

(Jc)  Com.  V.  Earle,  1  Whart.  525.     Under  this  indictment  the  prisoner  was 
executed. 

99 


(136)  OFFENCES    AGAINST    THE    PERSON. 

C.  E. ;  he  the  said  J.  E.  then  and  there  well  knowing  that  the 
said  chocolate  with  which  he  the  said  J.  E.  did  so  mix  and  min- 
gle the  deadly  poison  as  aforesaid,  was  then  and  there  prepared 
for  the  use  of  the  said  C.  E.,  with  intent  to  be  then  and  there 
administered  to  her  for  her  dtinking  the  same;  and  the  said 
chocolate  with  which  the  said  poison  was  so  mixed  as  afore- 
said, afterwards,  to  wit,  on  the  said  fourteenth  day  of  October, 
in  the  year  last  aforesaid,  and  on  the  said  other  days  and  times, 
at  Lycoming  County  aforesaid,  was  delivered  to  the  said  C. 
E.,  to  be  then  and  there  drunk  by  her;  and  the  said  C.  E. 
not  knowing  the  said  poison  to  have  been  mixed  with  the 
said  chocolate,  did  afterwards,  to  wit,  on  the  said  fourteenth  day 
of  October,  in  the  year  last  aforesaid,  and  on  the  said  divers 
other  days  and  times,  there  drink  and  swallow  dow^n  into  her 
body,  several  quantities  of  the  said  poison  so  mixed  as  aforesaid 
with  the  said  chocolate  ;  and  the  said  C.  E.,  of  the  poison  afore- 
said, and  by  the  operation  thereof,  on  the  said  fourteenth  day  of 
October,  in  the  year  last  aforesaid,  at  Lycoming  County  afore- 
said, became  sick  and  greatly  distempered  in  her  body  ;  of  which 
said  sickness  and  distemper  of  body,  occasioned  by  the  drinking, 
taking,  and  swallowing  down  into  the  body  of  the  said  C.  E.  of 
the  poison  aforesaid,  so  mixed  and  mingled  in  the  said  chocolate 
as  aforesaid,  she  the  said  C.  E.,  from  the  said  several  days  and 
times  on  which  she  had  so  drunk  and  swallowed  down  the  same 
as  aforesaid,  until  the  sixteenth  day  of  October,  in  the  year  last 
aforesaid,  at  Lycoming  County  aforesaid,  did  languish,  and  lan- 
guishing did  live  ;  on  wliich  said  sixteenth  day  of  October,  in 
the  year  last  aforesaid,  at  Lycoming  County  aforesaid,  she,  the 
said  C.  E.  of  the  poison  aforesaid,  so  taken,  drunk,  and  swal- 
lowed down  as  aforesaid,  and  of  the  said  sickness  and  distemper 
thereby  occasioned,  did  die. 

And  so  the  inquest  aforesaid,  upon  their  oaths  and  affirmations 
respectively  as  aforesaid,  do  say,  that  the  said  J.  E.,  her  the  said 
C.  E.,  in  the  manner  and  by  the  means  aforesaid  then  and  there 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  kill  and 
murder,  contrary  to  the  form  of  the  act  of  general  assembly  of 
this  commonwealth  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  Commonwealth  of  Pennsylvania. 
100 


HOMICIDE.  (1^37) 

(137)  Second  count.  Mixing  arsenic  in  tea. 
And  the  jurors  aforesaid,  upon  tlieir  oaths  and  affirmations 
respectively  as  aforesaid,  do  further  present,  that  the  said  J.  E., 
on  the  said  fourteenth  day  of  October,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  thirty-five  as  aforesaid,  and  on 
divers  other  days  and  times  between  the  said  fourteenth  day  of 
October,  in  the  year  last  aforesaid,  and  the  sixteenth  day  of  Oc- 
tober, in  the  year  last  aforesaid,  at  Lycoming  County  aforesaid, 
with  force  and  arms,  did  knowingly,  wilfully,  feloniously,  and  of 
his  malice  aforethought,  place,  mix,  and  mingle  certain  deadly 
poison,  to  wit,  white  arsenic,  in  certain  tea  which  had  been  at 
divers  days  and  times  during  the  time  aforesaid  prepared  for  the 
use  of  the  said  C.  E.,  to  be  drunk  by  her  the  said  C.  E. ;  he  the 
said  J.  E.  then  and  there  well  knowing  that  the  said  tea  with 
which  the  said  poison  was  mixed  as  aforesaid,  was  then  and  there 
prepared  for  the  use  of  the  said  C.  E.,  with  intent  to  be  then  and 
there  administered  to  her  for  her  drinking  the  same.  And  the 
said  tea  with  which  the  said  poison  was  so  mixed  as  aforesaid, 
afterwards,  to  wit,  on  the  said  fourteenth  day  of  October,  in  the 
year  last  aforesaid,  and  on  the  said  other  days  and  times,  at  Ly- 
coming County  aforesaid,  was  delivered  to  the  said  C.  E.,  to  be 
then  and  there  drunk  by  her;  and  the  said  C.  E.,  not  knowing  the 
said  poison  to  have  been  mixed  with  the  said  tea,  did  afterwards, 
to  wit,  on  the  said  fourteenth  day  of  October,  in  the  year  last  afore- 
said, and  on  the  said  divers  other  days  and  times,  there  did  drink 
and  swallow  down  into  her  body  several  quantities  of  the  said 
poison  so  mixed  as  aforesaid  with  the  said  tea  ;  and  the  said  C. 
E.,  of  the  poison  aforesaid,  and  by  the  operation  thereof,  on  the 
said  fourteenth  day  of  October,  in  the  year  last  aforesaid,  at  Ly- 
coming County  aforesaid,  became  sick  and  greatly  distempered 
in  her  body;  of  which  said  sickness  and  distemper,  occasioned 
by  the  drinking,  taking,  and  swallowing  down  into  the  body  of  the 
said  C.  E.  of  the  poison  aforesaid,  so  mixed  and  mingled  in  the 
said  tea  as  aforesaid,  she  the  said  C.  E.,  from  the  said  several 
days  and  times  on  which  she  had  so  drunk  and  swallowed  down 
the  same  as  aforesaid,  until  the  said  sixteenth  day  of  October,  in 
the  year  last  aforesaid,  at  Lycoming  County  aforesaid,  did  lan- 
guish, and  languishing  did  live  ;  on  which  said  sixteenth  day  of 

101 


n38)  OFFENCES    AGAINST    THE    PERSON. 

October,  in  the  year  last  aforesaid,  at  Lycoming  County  aforesaid, 
she  the  said  C.  E.,  of  the  poison  aforesaid,  so  taken,  drunk,  and 
swallowed  down  as  aforesaid,  and  of  the  sickness  and  distemper 
thereby  occasioned,  did  die. 

And  so  the  inquest  aforesaid,  upon  their  oaths  and  affirmations 
respectively  as  aforesaid,  do  say,  that  the  said  J.  E.,  her  the  said 
C.  E.,  in  the  manner  and  by  the  means  last  aforesaid,  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  did  kill 
and  murder,  contrary  to  the  form  of  the  act  of  general  assembly 
of  this  commonwealth  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  Commonwealth  of  Pennsylvania. 

("138)  Murder  hy  giving  to  the  deceased  poison,  and  thereby  aiding 

her  in  suicide.Q') 

That  B.  A.,  on  the  twenty-eighth  of  February,  at  St.  Leonard, 
Shoreditch,  upon  E.  C,  "  feloniously,  wilfully,  and  of  his  malice 

(A  R.  V.  Alison,  8  C.  &  P.  418.  As  has  already  been  observed  (see  ante, 
108,  note  (/),  a  party  wlio  is  present  aiding  in  the  commission  of  a  suicide,  be- 
comes a  principal  in  the  offence,  and  may  be  indicted  for  the  murder  of  the  de- 
ceased, though  the  courts  in  England  and  Massachusetts  differ  as  to  -whether 
there  can  be  accessaries  before  the  fact  to  suicide  at  common  law.  Patteson 
J.,  in  summing  up  in  the  present  case,  after  stating  the  indictment,  said:  "  This 
case  undoubtedly  presents  some  extraordinary  features.  There  is  an  old  case 
which  occurred  as  far  back  as  the  reign  of  James  I.,  which  was  very  similar  to 
the  present.  In  that  case  a  husband,  and  wife,  being  in  extreme  poverty  and 
great  distress  of  mind,  were  conversing  together  on  their  unfortunate  condition, 
when  the  husband  said,  '  I  am  weary  of  life,  and  will  destroy  myself; '  upon 
which  the  wife  replied,  '  If  you  do,  I  will  too.'  The  man  then  went  out,  and 
havino-  bought  some  poison,  he  mixed  it  with  some  drink,  and  they  both  par- 
took of  it.  The  draught  was  fatal  to  the  husband;  but  the  wife,  in  her  agony 
from  the  effect  of  the  poison,  seized  a  flask  of  salad  oil  and  drank  it  off,  which 
caused  a  sickness  of  the  stomach,  and  the  consequence  was  that  she  voided  the 
poison,  and  her  life  was  saved.  She  was  afterwards  tried  for  the  murder  of  her 
husband  in  this  very  court,  and  acquitted,  but  solely  on  the  ground  that  being 
the  wife  of  the  deceased,  she  was  under  his  control ;  and  inasmuch  as  the  pro- 
posal to  commit  suicide  had  been  first  suggested  by  him,  it  was  considered  that 
she  was  not  a  free  agent,  and  therefore  the  jury,  luider  the  direction  of  the  judge 
who  tried  the  case,  pronounced  her  not  guilty.  There  is  also  another  case 
which  occurred  not  very  long  since,  which  still  more  nearly  resembles  the  pres- 
ent. R.  V.  Dyson,  R.  &  R.  528,  set  out  in  Rose.  C.  E.  646.  It  was  the  case  of 
a  man  and  woman  who  lived  together,  but  were  not  married.  They  were  in 
great  poverty,  and  having  formed  a  determination  to  destroy  themselves,  they 
went  to  the  theatre,  and  afterwards  proceeded  together  to  Westminster  Bridge, 

102 


HOMICIDE.  (139) 

aforethought,  did  make  an  assault,  and  feloniously,  wilfully,  and 
of  his  malice  aforethought,  did  give  and  administer  to  her  two 
ounces  weight  of  a  deadly  poison  called  laudanum,  with  intent 
that  she  should  take  and  swallow  the  same  down  into  her  body 
(he  knowing  the  same  to  be  a  deadly  poison) ;  and  that  the  said 
E.  C.  the  said  laudanum  so  administered  did  take  and  swallow 
down  into  her  body,  and  by  reason  thereof  became  mortally  sick 
and  distempered  in  her  body,  and  of  such  mortal  sickness  and 
distemper  then  and  there  died."    ( Conclude  as  in  book  1,  chapter  3.) 

(139)  Murder  in  the  first  degree  in  Ohio.     By  obstructing  a  rail- 
road track. (^a') 

That  A.  B.,  on  the  seventh  day  of  May,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  fifty-one,  at  the  township  of  New- 
burgh,  in  the  County  of  Cuyahoga,  aforesaid,  unlawfully,  wilfully, 
purposely,  and  of  his  deliberate  and  premeditated  malice, (a^)  in 
and  upon  the  track  of  a  certain  railroad,  then  and  there  being  in 

whei-e  they  got  into  a  boat,  but  the  water  being  shallow,  they  entered  another, 
where  they  had  conversed  together  for  some  time,  when  on  a  sudden,  according 
to  the  statement  of  the  man,  he  saw  the  woman  struggling,  and  plunged  in  for 
the  purpose  of  rescuing  her ;  but  he  failed  in  his  attempt.  Tlie  woman  was 
drowned,  and  he  was  tried  for  her  murder  and  convicted.  The  case  was,  how- 
ever, subsequently  referred  to  the  judges,  who  were  of  opinion  that  the  convic- 
tion was  good  in  point  of  law,  but  as  there  was  some  doubt  whether  the  woman 
might  not  have  fallen  into  the  water  by  accident,  and  whether  the  prisoner 
might  not,  as  he  had  stated,  have  endeavored  to  save  her  life,  he  had  the  benefit 
of  the  doubt,  and  was  recommended  for  a  pardon.  After  these  two  cases,  I 
should  not  be  discharging  my  duty  if  I  did  not  tell  you  that  supposing  the  par- 
ties in  this  case  mutually  agreed  to  commit  suicide,  and  one  only  accomplished 
that  object,  the  survivor  will  be  guilty  of  murder  in  point  of  law.  It  may  be 
%  said  that  they  were  both  under  the  influence  of  what  is  called  'temporary  in- 
sanity,' and  a  practice  has  of  late  years  been  pursued  by  coroners'  juries,  of 
finding  verdicts  to  that  effect  in  cases  which  do  not  at  all  justify  such  a  conclu- 
sion. As  a  lawyer,  I  am  bound  to  say  that  such  verdicts  are  wholly  unwar- 
ranted by  the  law  of  this  country."  His  lordship,  in  conclusion,  told  the  jury- 
that,  in  his  opinion,  there  was  not  any  evidence  to  show  that  the  prisoner  was 
not  in  his  perfect  senses;  and  if  they  were  of  the  same  opinion,  he  would  bo 
legally  responsible  for  the  death  of  the  deceased.  Verdict  —  guilty.  See 
Wh.  C.  L.  §  127. 

(a)  This  was  sustained  in  Ohio  in  State  v.  Brooks,  9  West.  L.  J.  109  ;  War- 
ren's C.  L.  13. 

(fli)  It  is  now  better  to  aver,  at  this  point,  a  purpose  and  intention  to  kill,  or 
to  inflict  a  mortal  wound.     Fonts  v.  State,  8  Ohio,  98  ;    Kain  v.   State,  8  lb. 

103 


(139)  OFFENCES   AGAINST   THE    PERSON. 

operation,  and  known  as  and  called  the  Cleveland  and  Pittsburg 
Railroad,  a  certain  obstruction,  called  and  being  a  plank  of  wood, 
of  great  length,  breadth,  and  thickness,  to  wit,  eight  feet  long, 
one  foot  wide,  and  three  inches  thick,  then  and  there  did  put 
and  place,  by  means  of  which  said  obstruction  then  and  there  so 
placed  and  put  in  and  upon  the  said  Cleveland  and  Pittsburg 
Railroad  by  the  said  A.  B.,  as  aforesaid,  and  by  means  of  the 
force  and  velocity  of  a  certain  locomotive  engine,  called  the  Crab, 
then  and  there  passing  along  and  upon  the  track  of  the  said 
Cleveland  and  Pittb*burg  Railroad,  and  running  against  and  upon 
the  said  obstruction,  so  put  and  placed  by  the  said  A.  B.,  as 
aforesaid,  one  M.  N.,  then  and  there  being  and  passing  along  the 
said  railroad  upon  the  locomotive  aforesaid,  he  the  said  A.  B., 
with  great  force  and  violence,  thereby  unlawfully,  wilfully,  pur- 
posely, and  of  his  deliberate  and  premeditated  malice,(/>)  did  then 
and  there  precipitate,  cast,  and  throw  from  the  said  locomotive, 
so  passing  as  aforesaid,  to  and  upon  the  rails,  ties,  and  other  sub- 
stances composing  the  track  of  said  railroad,  thereby  then  and 
there  giving  to  the  said  M.  N.  one  mortal  concussion  and  jar,  of 
which  said  mortal  concussion  and  jar  the  said  M.  N.  then  and 
there  instantly  died  ;  and  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  A.  B.,  him  the  said  M.  N.,  in  man- 
ner and  form  aforesaid,  feloniously,  unlawfully,  wilfully,  pur- 
posely, and  of  his  deliberate  and  premeditated  malice,  did  kill 
and  murder.     [Conclude  as  in  book  1,  chapter  3.) 

Second  count. 

That  the  said  A.  B.,  late  of  the  county  aforesaid,  on  the  seventh 
day  of  May,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  fifty-one,  at  the  township  of  Newburg,  in  the  County  of 
Cuyahoga,  aforesaid,  unlawfully,  purposely,  wilfully,  and  of  his 
deliberate  and  premeditated  malice,  in  and  upon  the  track  of  a 
certain  railroad  then  and  there  being  in' operation,  and  known  as 
and  called  the  Cleveland  and  Pittsburg  Railroad,  a  certain  ob- 
struction then  and  there  called  and  being  a  plank  of  wood,  of 

306;  Hagan  v.  State,  10  Ohio  St.  R.  459;  LoetFncr  v.  State,  10  Ohio  St.  R. 
699. 

(J))  This  averment  is  necessary  under  the  Ohio  statute.  It  would  be  safer  to 
add,  "  and  with  purpose  and  intent  to  kill  and  destroy,"  &c. 

104 


HOMICIDE.  (140) 

great  length,  breadth,  and  thickness,  to  wit,  eight  feet  long,  one 
foot  wide,  and  three  inches  thick,  then  and  there  did  put  and 
place,  by  means  of  wiiich  obstruction,  then  and  there  so  put  and 
placed  by  the  said  A.  B.,  in  and  upon  the  Cleveland  and  Pitts- 
burg Raih'oad,  and  by  means  of  the  force  and  velocity  of  a  cer- 
tain locomotive  engine  called  the  Crab,  then  and  there  passing 
along  said  raih'oad,  and  running  against  and  upon  the  said  ob- 
struction so  placed  by  the  said  A.  B.  as  aforesaid,  one  M.  N., 
then  and  there  being,  and  passing  along  said  railroad,  upon  the 
locomotive  aforesaid,  he  the  said  A.  B.,  with  great  force  and  vio- 
lence, did  thereby,  then  and  there,  unlawfully,  wilfully,  purposely, 
and  of  his  deliberate  and  premeditated  malice,  precipitate,  cast, 
and  throw,  from  the  said  locomotive,  to  and  upon  the  track  of  the 
railroad  aforesaid,  and  with  the  said  locomotive,  the  body  of  the 
said  M.  N.,  did  run  over  and  crush,  thereby  giving  to  the  said  M. 
N.,  in  and  upon  the  body  of  him  the  said  M.  N.,  one  mortal  crush 
and  contusion,  of  which  said  mortal  crush  and  contusion  the  said 
M.  N.  then  and  there  instantly  died;  and  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  A.  B.,  him  the 
said  M.  N.J  in  the  manner  and  form  aforesaid,  unlawfully,  wil- 
fully, purposely,  and  of  his  deliberate  and  premeditated  malice, 
did  kill  and  murder.     [Conclude  as  m  book  1,  chajjte?'  3.) 

(140)  3Iurder  in  the  first  degree  in  Ohio,  by  sending  ip  the  deceased 
a  box  containing  an  iron  tube,  gunpowder,  bullets,  ^c,  art- 
fully  arranged  so  as  to  exjjlode  on  attempting  to  open  it.(^c^ 

That  A.  B.,  contriving  one  M.  N.  to  deprive  of  his  life,  and  him, 
the  said  M.  N.,  purposely,  and  of  deliberate  and  premeditated 
mahce  to  kill  and  murder,  on  the  twenty-sixth  day  of  June,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty-four,  with 
force  and  arms,  at  the  City  of  Cincinnati,  in  the  County  of  Hamil- 
ton aforesaid,  a  certain  wooden  box,  then  and  there  containing  an 
iron  tube  closed  at  both  ends,  an-d  loaded  and  charged  with  gun- 
powder and  ten  leaden  bullets  and  ten  leaden  slugs  (which  said 
box  and  its  contents  were  then  and  there  so  constructed  and 
arranged  that  whenever  any  person  should  attempt  to  open  the 
said  box,  the  iron  tube  aforesaid,  loaded  and  charged  as  aforesaid, 

(c)  This  indictment  is  given  by  Mr.  Warren  as  having  been  sustained  in 
Ohio.    Warren's  C,  L.  16. 

105 


(140)  OFFENCES    AGAINST   THE   PERSON. 

would  thereby  instantly  be  exploded,  and  as  well  the  said  box  as 
the  said  tube  be  broken  into  pieces,  and  the  fragments  of  the  said 
tube,  together  with  the  bullets  and  slugs  aforesaid,  be  driven  and 
shot  forth),  did  purposely  and  of  deliberate  and  premeditated 
malice,  send  and  cause  to  be  delivered  to  the  said  M.  N.,  in  the 
city  and  county  aforesaid,  with  intent  that  he,  the  said  M.  N., 
should  receive  the  said  box,  and  should  attempt  to  open  the  same, 
he  the  said  A.  B.  then  and  there  well  knowing  that  the  said  tube 
loaded  and  charged  as  aforesaid  with  gunpowder,  bullets,  and 
slugs,  would  be  exploded  whenever  any  person  should  attempt  to 
open  the  said  box,  and  that  the  explosion  thereof  would  kill  every 
such  person,  and  the  said  M.  N.  not  knowing  the  said  box  and 
its  contents  to  have  been  so  constructed  and  arranged  as  afore- 
said, nor  that  the  said  box  contained  the  said  tube,  loaded  and 
charged  as  aforesaid,  or  any  other  deadly  or  hurtful  instrument 
or  substance  whatsoever,  afterwards,  on  the  day  and  year  afore- 
said, at  the  city  and  county  aforesaid,  by  the  procurement  of  the 
said  A.  B.  did  receive  the  said  box,  and  did  then  and  there  at- 
tempt to  open  the  same,  and  instantly,  upon  the  said  attempt  of  • 
him,  the  said  M.  N.  to  open  the  said  box,  on  the  day  and  year 
aforesaid,  at  the  city  and  county  aforesaid,  the  iron  tube  aforesaid, 
contained  within  the  said  box,  closed  at  both  ends,  and  loaded 
and  charged  with  gunpowder,  bullets,  and  slugs,  as  aforesaid,  was 
exploded,  and  thereby  as  well  the  said  tube,  as  the  said  box  was 
then  and  there  broken  into  pieces,  and  the  fragments  of  the  said 
tube,  together  with  the  bullets  and  slugs  aforesaid,  were  then  and 
there  driven  and  shot  forth ;  by  means  whereof  and  by  force  of  the 
explosion  of  the  gunpowder  contained  within  the  said  tube,  eight 
of  the  said  bullets,  and  eight  of  the  said  slugs,  driven  and  shot 
forth  as  aforesaid,  did  then  and  there  strike  and  penetrate  the  in- 
side of  the  right  thigh  of  the  said  M.  N.,  immediately  below  the 
groin,  then  and  there  giving  to  him  the  said  M.  N.,  in  and  upon 
the  inside  of  the  right  thigh  of  him  the  said  M.  N.,  immediately 
below  the  groin,  sixteen  mortal  wounds,  each  of  the  depth  of 
five  inches  and'of  the  breadth  of  one  inch  ;  and,  also,  by  means 
whereof,  and  by  force  of  the  explosion  of  the  gunpowder  afore- 
said, one  fragment  of  the  said  iron  tube,  driven  and  shot  forth  as 
aforesaid,  did  then  and  there  strike  and  mortally  lacerate  the  ab- 
domen and  bowels  of  him  the  said  M.  N.,  for  the  space  of  six 
106 


HOMICIDE.  (140) 

inches  in  length  and  breadth,  and  four  inches  in  depth ;  of  which 
said  mortal  wounds  and  contusion  and  laceration,  he,  the  said  M. 
N.,  from  the  said  twenty-sixth  day  of  June,  in  the  year  aforesaid, 
until  the  twenty-seventh  day  of  June  in  the  same  year,  at  the 
city  and  county  aforesaid,  languished,  and  languishing  did  live; 
on  which  twenty-seventh  day  of  June,  in  the  year  aforesaid,  at 
the  city  and  county  aforesaid,  he,  the  said  M.  N.,  of  the  mortal 
wounds  and  laceration  aforesaid,  died  :  And  so  the  jurors  afore- 
said, on  their  oaths  aforesaid,  do  say,  that  the  said  A.  B.,  him,  the 
said  M.  N.,  in  manner  and  form  aforesaid,  at  the  city  and  county 
aforesaid,  purposely,  and  of  deliberate  and  premeditated  malice, 
did  kill  and  murder.     {Conclude  as  in  book  1,  chapter  3.)i 

Second  count. 

That  the  said  A.  B.,  contriving  one  M.  N.  to  deprive  of  his 
life,  and  him  the  said  M.  N.  purposely,  and  of  deliberate  and  pre- 
meditated malice  to  kill  and  murder,  on  the  twenty-sixth  day  of 
June,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
fifty-four,  with  force  and  arms,  at  the  City  of  Cincinnati,  in  the 
County  of  Hamilton  aforesaid,  a  certain  wooden  box,  then  and 
there  containing  an  iron  tube  closed  at  both  ends,  and  loaded 
and  charged  with  gunpowder  and  ten  leaden  bullets  anc^  ten 
leaden  slugs,  and  which  said  box,  between  said  iron  tube,  so 
contained  and  loaded  and  charged  as  aforesaid  within  said  box, 
and  the  sides  of  the  said  box,  was  then  and  there  also  loaded 
and  charged  w^ith  gunpowder  and  twenty  leaden  bullets  and 
twenty  leaden  slugs  (which  said  box  and  its  contents  were 
then  and  there  so  constructed  and  arranged  that  whenever  any 
person  should  attempt  to  open  the  same,  the  iron  tube  afore- 
said, loaded  and  charged  as  aforesaid,  as  well  as  the  gunpowder 
aforesaid,  so  placed  as  aforesaid  between  the  said  iron  tube  and 
the  sides  of  the  said  box,  would  thereby  instantly  be  exploded, 
and  as  well  the  said  box,  as  the  said  tube,  be  broken  into  pieces, 
and  the  fragments  of  the  said  tube,  together  with  the  bullets  and 
slugs  aforesaid,  as  well  those  within  the  said  tube,  as  those  be- 
tween the  said  tube  and  the  sides  of  the  said  box,  be  driven  and 
shot  forth),  did  purposely  and  of  deliberate  and  premeditated 
malice  send  and  cause  to  be  delivered  to  the  said  M.  N.,  in  the 
city  and   county  aforesaid,  with  intent  that  he,  the  said  M.  N., 

107       • 


(140)  OFFENCES   AGAINST   THE    PERSON. 

should  receive  the  said  box  and  should  attempt  to  open  the  same  ; 
he,  the  said  A.  B.,  then  and  there  well  knowing  that  the  said 
tube,  loaded  and  charged  as  aforesaid,  with  gunpowder,  bullets, 
and  slugs,  as  well  as  the  gunpowder  aforesaid,  so  placed  as  afore- 
said between  the  said  iron  tube  and  the  sides  of  the  said  box, 
would  be  exploded  whenever  any  person  should  attempt  to  open 
the  said  box,  and  that  the  explosion  thereof,  to  wit  the  iron  tube, 
and  the  gunpowder  between  the  said  iron  tube  and  the  sides  of 
the  said  box,  would  kill  every  such  person  ;  and  the  said  M.  N., 
not  knowing  the  said  box  and  its  contents  to  have  been  so  con- 
structed and  arranged  as  aforesaid,  nor  that  the  said  box  con- 
tained the  said  tube,  loaded  and  charged  as  aforesaid,  nor  that 
the  said  box  contained  the  gunpowder,  leaden  bullets,  and  leaden 
slugs  aforesaid,  placed  as  aforesaid  between  the  said  iron  tube 
and  the  sides  of  the  said  box,  or  any  other  deadly  or  hurtful  in- 
strument or  substance  whatsoever,  afterwards,  on  the  day  and 
year  aforesaid,  at  the  city  and  county  aforesaid,  by  the  procure- 
ment of  the  said  A.  B.,  did  receive  the  said  box,  and  did  then 
and  there  attempt  to  open  the  same,  and  instantly  upon  the  said 
attempt  of  him  the  said  M.  N.  to  open  the  said  box,  on  the  day 
and  year  aforesaid,  at  the  city  and  county  aforesaid,  the  iron  tube 
aforesaid,  contained  within  the  said  box,  closed  at  both  ends,  and 
loaded  and  charged  with  gunpowder,  bullets,  and  slugs,  as  afore- 
said, and  the  gunpowder  aforesaid,  so  contained  as  aforesaid 
between  the  said  iron  tube  and  the  sides  of  the  said  box,  were 
thereby  exploded,  and  thereby  as  well  the  said  tube  as  the  said 
box  was  then  and  there  broken  into  pieces,  and  the  fragments  of 
the  said  tube,  together  with  the  bullets  and  slugs  aforesaid,  as 
well  those  within  the  said  tube  as  those  contained  as  aforesaid 
between  the  said  tube  and  the  sides  of  the  said  box,  were  then 
and  there  driven  and  shot  forth ;  by  means  whereof,  and  by  force 
of  the  explosion  of  the  gunpowder  contained  within  said  tube, 
and  by  force  of  the  explosion  of  the  gunpowder  contained  as 
aforesaid  between  said  tube  and  the  sides  of  the  said  box,  eight 
of  the  said  bullets  and  eight  of  the  said  slugs,  contained  as  afore- 
said within  said  tube,  and  between  said  tube  and  the  sides  of  the 
said  box,  driven  and  shot  forth  as  aforesaid,  did  then  and  there 
strike  and  penetrate  the  inside  of  the  right  thigh  of  the  said  M. 
N.,  immediately  below  the  groin,  then  and  there  giving  to  him 
108 


wtsuiki^ 


HOMICIDE.  (141) 

the  said  M.  N.,  in  and  upon  the  inside  of  the  right  thigh  of  him 
the  said  M.  N.,  immediately  below  the  groin,  sixteen  mortal 
wounds,  each  of  the  depth  of  five  inches,  and  of  the  breadth  of 
one  inch,  and,  also,  by  means  whereof,  and  by  force  of  the  explo- 
sion of  the  gunpowder  aforesaid,  one  fragment  of  the  said  iron 
tube,  driven  and  shot  forth  as  aforesaid,  did  then  and  there  strike, 
and  mortally  wound  and  lacerate  the  abdomen  and  bowels  of 
him  the  said  M.  N.,  for  the  space  of  six  inches  in  length  and 
breadth,  and  four  inches  in  depth,  of  which  said  mortal  wounds 
and  laceration,  he,  the  said  M.  N.,  from  the  said  twenty-sixth  day 
of  June,  in  the  year  aforesaid,  until  the  t\venty7seventh  day  of 
June,  in  the  same  year,  at  the  city  and  county  aforesaid,  lan- 
guished, and  languishing  did  live;  on  which  said  twenty-seventh 
day  of  June,  in  the  year  aforesaid,  at  the  city  and  county  afore- 
said, he,  the  said  M.  N.,  of  the  mortal  wounds  and  laceration 
^  aforesaid,  died  :  And  so  the  jurors  aforesaid,  upon  their  oaths 
aforesaid,  do  say,  that  the  said  A.  B.,  him  the  said  M.  N.,  in 
manner  and  form  aforesaid,  at  the  city  and  county  aforesaid, 
purposely,  and  of  deliberate  and  premeditated  malice,  did  kill  and 
murder.     [Conclude  as  in  book  1,  chapter  3.) 

(141)  3Iurderin  the  first  degree  in  Ohio  —  by  a  father^  chairiing  and 
confining  his  infant  daughter  several  nights  during  cold  weather 
ivithout  clothing  or  fire. (j£) 

That  A.  B.,  feloniously,  unlawfully,  purposely,  maliciously,  and 
of  his  deliberate  and  premeditated  malice,  contriving  and  intend- 
ing one  M.  N.  (she,  the  said  M.  N.,  then  and  there  being  the 
infant  daughter  of  him  the  said  A.  B.),  to  kill  and  murder,  on 
the  tenth  day  of  November,  in  the  year  of  our  Lord,  eighteen 
hundred  and  fifty-three,  and  on  divers  other  days  and  times 
between  that  day  and  the  seventeenth  day  of  February,  in  the 
year  of  our  Lord  eighteen  hundred  and  fifty-four,  with  force  and 
arms  at  the  County  of  Shelby  aforesaid,  in  and  upon  the  said 
M.  N.,  his  infant  daughter  as  aforesaid,  in  tlie  (jDcace  of  the  State 
of  Ohio,  then  and  there  being,  unlawfully,  feloniously,  pur- 
posely,(c^)  and  of  his  deliberate  and  premeditated  malice  did  make 

((i)  Mr.  Warren  gives  the  above  as  having  been  sustained  in  Ohio.  Warren's 
C.  L.  23. 

(c/l)  It  is  essential  that  the  intent  and  piirj^ose  to  kill  .«hould  be  specifically 

109 


(141)  OFFKNCES    AGAINST    TUB    PERSON. 

divers  assaults  ;  and  that  the  said  A.  B.  did  then  and  there  bind 
and  fasten  a  certain  iron  chain  around  the  neck  of  her  the  said 
M.  N.,  and  with  and  by  means  of  said  chain,  her  the  said  M.  N., 
then  and  there,  in  a  certain  room,  in  the  dwelling-house  of  him 
the  said  A.  B.  there  situate,  feloniously,  unlawfully,  purposely, 
maliciously,  and  of  deliberate  and  jjremeditated  malice,  did  chain, 
confine,  and  imprison  ;  and  that  the  said  A.  B.,  during  the  night 
season  of  each  day,  from  the  said  tenth  day  of  November,  in  the 
year  of  our  Lord  eighteen  hundred  and  fifty-three,  until  the  said 
seventeenth  day  of  February,  in  the  year  of  our  Lord  eighteen 
hundred  and  fifty-four,  with  force  and  arms,  at  the  County  of 
Shelby  aforesaid,  did  feloniously,  unlawfully,  purposely,  ma- 
liciously, and  of  his  deliberate  and  premeditated  malice,  with  the 
chain  aforesaid,  confine  and  imprison  her  the  said  M.  N.,  in  his 
room  aforesaid,  without  fire  and  without  clothing,  or  other  means 
of  protection  from  the  cold  ;  and  that  daring  all  the  said  time 
the  weather  was  cold,  inclement,  freezing  weather;  and  that  the 
said  A.  B.,  from  the  said  tenth  day  of  November  in  the  year  of 
our  Lord  eighteen  hundred  and  fifty-three,  until  the  said  seven- 
teenth day  of  February,  in  the  year  of  our  Lord  eighteen  hun- 
dred and  fifty- four,  with  force  and  arms,  at  the  County  of  Shelby 
aforesaid,  feloniously,  unlawfully,  purposely,  maliciously,  and  of 
his  deliberate  and  premeditated  malice,  did  neglect,  omit,  and 
refuse  to  give,  provide,  and  furnish,  and  to  permit  and  suffer  to 
be  given,  provided,  and  furnished  to  her,  the  said  M.  N.,  his  infant 
daughter  as  aforesaid,  so  chained,  imprisoned,  and  confined  as 
aforesaid,  sufficient  clothing,  fire,  or  other  means  of  warmth  and 
comfort,  necessary  to  preserve  and  protect  her  the  said  M.  N., 
from  freezing  and  perishing  with  the  said  cold,  by  means  of  which 
said  imprisonment  and  confinement,  and  also  of  such  neglecting 
and  refusing  to  give,  provide,  and  furnish,  and  to  permit  and 
suffer  to  be  given,  provided,  and  furnished,  to  her  the  said  M.  N., 
such  clothing,  fire,  or  other  means  of  warmth  and  comfort  as  were 

averred  in  the  description  of  this  crime  ;  and  the  failure  to  do  this  is  not  cured  by 
an  averment  of  purpose  as  to  the  assault,  or  in  the  general  conclusion.  Fonts 
V.  State,  8  Ohio,  St.  R.  98.  * 

It  is  enough,  however,  to  allege  that  the  accused  ^'■purposely,  and  of  deliberate 
and  premeditated  malice,  assaulted,  cut,  and  stabbed  "  the  deceased,  "  thereby 
then  and  there  purposely,  and  of  deliberate  and  premeditated  malice,  giving"  to 
the  said  deceased,  "a  mortal  wound,"  &c.     Loefiher  v.  State,  IvO  Ohio  St  R.  599. 

110 


HOMICIDE.  (142) 

sufficient  and  necessary  for  the  preservation  and  protection  of 
her,  the  said  M.  N.,  from  freezing  and  perishing  with  and  of  the 
cold,  she,  the  said  M.  N.,  then  and  there  became  and  was  sick, 
chilled,  and  frozen  ;  and  from  the  said  tenth  day  of  November,  in 
the  year  of  our  Lord  eighteen  hundred  and  fifty-three,  until  the 
said  seventeenth  day  of  February,  in  the  year  of  our  Lord  eigh- 
teen hundred  and  fifty-four,  at  the  County  of  Shelby  aforesaid, 
of  the  said  exposure  to  cold,  chilling,  freezing,  and  confinement, 
she,  the  said  M.  N.,  died  ;  and  so  the  grand  jurors  aforesaid,  upon 
their  oaths  aforesaid,  do  say  that  the  said  A.  B.,  her,  the  said  M. 
N.,  in  manner  and  form  aforesaid,  at  the  county  aforesaid,  felo- 
niously, unlawfully,  purposely,  and  of  his  deliberate  and  j)remed- 
itated  malice  (and  with  intent  and  purpose  to  kill  and  murder), 
did  kill  and  murder.     [Conclude  as  in  hook  1,  chapter  3.) 

(1-12)   /Second  count,  not  alletjing  a  chaining. 

That  the  said  A.  B.,  feloniously,  unlawfully,  purposely,  and  of 
his  deliberate  and  premeditated  malice,  contriving  and  intending 
the  said  M.  N.  (she,  the  said  M.  N.,  theti  and  there  being  the 
infant  daughter  of  him,  the  said  A.  B.)  to  kill  and  murder,  on 
the  tenth  day  of  November,  in  the  year  of  our  Lord  eighteen 
hundred  and  fifty-three,  and  on  divers  other  days  and  times,  be- 
tween that  day  and  the  seventeenth  day  of  February,  in  the  year 
of  our  Lord  eighteen  hundred  ^id  fifty-four,  with  force  and  arms, 
at  the  County  of  Shelby  aforesaid,  in  and  upon  the  body  of  the 
said  M.  N.,  in  the  peace  of  the  State  of  Ohio,  then  and  there 
being,  unlawfully,  feloniously,  purposely,  and  of  his  deliberate 
and  premeditated  malice,  did  make  divers  assaults,  and  the  said 
A.  B.,  on  the  said  tenth  day  of  November,  in  the  year  of  our 
Lord  eighteen  hundred  and  fifty -three,  and  from  said  last  named 
day  until  the  seventeenth  day  of  February,  in  the  year  of  our 
Lord,  eighteen  hundred  and  fifty-four,  with  force  and  arms  at 
the  county  aforesaid;  her,  the  said  M.  N.,  in  a  certain  room  of 
the  dwelling-house  of  the  said  A.  B.,  there  situate,  unlawfully, 
feloniously,  purposely,  and  of  his  deliberate  and  premeditated 
malice,  did  confine  and  imprison,  and  from  the  said  tenth  day  of 
November,  in  the  year  of  our  Lord  eighteen  hundred  and  fifty- 
three,  until  the  said  seventeenth  day  of  February,  in  the  year  of 
our  Lord  eighteen  hundred  and  fifty-four,  with  force  and  arms,  at 

111 


(142)  OFFENCES    AGAINST   THE    PERSON. 

the  county'"aforesaicl,  the  said  A.  B.  did  feloniously,  unlawfully, 
purposely,  maliciously,  and  of  his  deliberate  and  premeditated 
malice,  neglect,  omit,  and  refuse  to  give  and  administer,  and  to  per- 
mit to  be  given  and  administered  to  the  said  M.  N.  sufficient  meat 
and  drink  necessary  for  the  proper  and  healthful  sustenance,  sup- 
port, and  maintenance  of  the  body  of  her  the  said  M.  N.,  and  that 
the  said  A.  B.,  on  the  said  tenth  day  of  November,  in  the  year 
of  our  Lord  eighteen  hundred  and  fifty-three,  and  from  the  said 
last  named  day  until  and  on  the  seventeenth  day  of  February, 
in  the  year  our  Lord  eighteen  hundred  and  fifty-four,  with  force 
and  arms,  at  the  county  aforesaid,  feloniously,  unlawfully,  pur- 
posely, and  of  his  deliberate  and  premeditated  malice,  did  neglect 
and  refuse  to  provide,  furnish,  and  administer,  and  to  suffer  and 
permit  to  be  provided,  furnished,  and  administered  to  her  the  said 
M.  N.,  fire,  wearing  apparel,  bed  and  bedding,  or  other  means  of 
warmth,  protection,  and  comfort,  sufficient  and  necessary  to  pro- 
tect and  preserve  her,  the  said  M.  N.,  from  becoming  sick  and 
chilled,  she,  the  said  M.  N.,  then  and  there  being  so  confined 
and  imprisoned  by  the  said  A.  B.,  as  aforesaid,  and  the  weather 
being  then  and  there  cold  and  inclement;  by  means  of  which 
said  confinement  and  imprisonment,  and  also  of  such  neglecting 
and  refusing  to  give,  furnish,  provide,  and  administer,  and  to 
suffer  and  permit  to  be  given,  provided,  and  administered  to  her, 
the  said  M.  N.,  such  meat  and  d^nk  as  were  sufficient  and  nec- 
essary for  the  health  and  proper  support,  sustenance,  and  main- 
tenance of  the  body  of  her,  the  said  M.  N.,  and  also  by  means 
of  such  neglecting  and  refusing  to  furnish,  provide,  and  admin- 
ister, and  to  suffer  and  permit  to  be  furnished,  provided,  and 
administered  to  her,  the  said  M.  N.,  such  fire,  wearing  apparel, 
bed  and  bedding,  or  other  means  of  protection,  warmth,  &nd 
comfort,  sufficient  and  necessary  to  protect  her,  the  said  M.  N., 
from  becoming  sick  and  chilled,  she,  the  said  M.  N.,  from  the 
said  tenth  day  of  November,  in  the  year  of  our  Lord  eighteen 
hundred  and  fifty-three,  until  the  said  seventeenth  day  of  Feb- 
ruary, in  the  year  of  our  Lord  eighteen  hundred  and  fifty-four, 
at  the  County  of  Shelby  aforesaid,  did  languish,  and  languishing 
did  live  ;  on  which  said  seventeenth  day  of  February,  in  the  year 
of  our  Lord  eighteen  hundred  and  fifty^four,  she,  the  said  M.  N., 
at  the  county  aforesaid,  of  the  said  imprisonment,  deprivation  of 
112 


'iitH^'feP' 


HOMICIDE.  (143) 

meat  and  drink,  fire,  clothing,  bed  and  bedding,  or  the  means  of 
warmth  and  comfort,  died  ;  and  so  the  grand  jurors  aforesaid  do 
say,  that  the  said  A.  B.,  in  manner  and  form  aforesaid,  feloni- 
ously, unlawfully,  purposely,  maliciously,  and  of  his  deliberate 
and  premeditated  malice  aforethought,  her,  the  said  M.  N.,  did 
kill  and  murder.     [Conclude  as  in  book  1,  chapter  3.) 

(142I-)   By  stahhing  under  Ohio  statute. (dP-^ 

That  J.  L.,  on,  &c.,  at,  &c.,  with  force  and  arms,  in  and  upon 
one  N.  H.  in  the  peace  of  God  and  the  laws  of  this  State  then 
and  there  being,  purposely  and  of  deliberate  and  premeditated 
malice,  did  make  an  assault,  and  that  the  said  J.  L.,  with  a  cer- 
tain knife  which  he  the  said  J.  L,  in  his  right  hand  then  and  there 
held,  then  and  there  him,  the  said  N.  H.,  in  and  upon,  &c.  [describ- 
ing spot),  of  him  the  said  N.  H.,  then  and  there  purposely  and 
of  deliberate  and  premeditated  malice,  did  strike,  cut,  and  stab, 
thereby  ihen  and  there,  with  the  knife  aforesaid,  giving  to  him 
the  said  N.  H.,  in  and  upon  [describing-  spot),  of  him,  the  said 
N.  H.,  purposely  and  of  deliberate  and  premeditated  malice,  one 
mortal  wound,  of  the  length  of  four  inches,  and  of  the  depth  of 
six  inches,  of  which  said  mortal  wound,  so  as  aforesaid  purposely 
and  of  deliberate  and  premeditated  malice  given,  by  the  said  J. 
L.  to  the  said  N.  H.,  he  the  said  N.  H.,  on  the  day  aforesaid,  and 
in  the  year  aforesaid,  and  at  the  county  aforesaid,  instantly  died. 
And  so  the  jurors  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  say,  that  he,  the  said  J.  L.,  him  the  said  N.  H.,  in 
manner  and  by  the  means  aforesaid,  on  the  day  and  in  the  year 
aforesaid,  and  at  the  county  aforesaid,  purposely  and  of  deliber- 
ate and  premeditated  malice,  did  kill  and  murder,  &c. 

(143)  By  forcing  a  sick  person  into  the  streets. (in^ 

That  A.  B.,  of,  &c.,  intending  one  C.  D.  feloniously,  wilfully, 

and  of  his  malice  aforethought,  to  kill  and   murder,  on  at 

with  force  and  arms,  at  an  unseasonable  hour  in  the  night, 

to  wit,  about  the  hour  of  eleven  in  the  night  of  the  same  day, 

in  and  upon  the  said  C.  D.,  he  the  said  C.  D.  then  and  there 

(/Z-2)   This  was  sustained  in  Loeffner  v.  State,  10  Ohio  St.  R.  598. 
{m)   3  Chit.  C.  L.  7  71  ;   Davis'  Precedents,  189. 

VOL.   I.  -8  113 


(144)  OFFENCES    AGAINST   THE    PERSON. 

being  in  extreme  sickncs:^  and  weakness  of  body,  occasioned  by 
a  fever,  and  then  and  there  confined  to  his  bed  in  the  dwelling- 
house  of  him  the  said  A.  B.  there  situate,  ft'loniously,  wilfully, 
and  of  his  malice  aforethought,  did  make  an  assault;  and  that 
the  said  A.  B.  him  the  said  C.  D.,  from  and  out  of  the  said  bed, 
and  also  out  of  the  said  dwelling-house,  into  the  public  and  open 
street  there,  did  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  remove,  force,  and  drive,  and  there  abandon 
and  leave;  he  the  said  A.  B.  then  and  there  well  knowing  the 
said  C.  D.  to  be  then  in  extreme  sickness  and  weakness  of  body, 
occasioned  by  the  fever  aforesaid  ;  by  means  whereof,  he  the  said 
C.  D.,  through  the  cold  and  the  inclemency  of  the  weather,  and 
for  want  of  due  care  and  other  necessaries  requisite  for  a  person 
in  such  sickness  and  weakness  as  aforesaid,  then  and  there  died  ; 
and  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  A.  B.,  him  the  said  C.  D.,  in  manner  and  form 
aforesaid,  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  kill  and  murder.     ( Conclude  as  in  book  1,  chapter  3.) 

(144)  Murder  of  an  ivfant  hy  suffo cation.  {ii) 

That  on  the  twenty-sixth  day  of  June,  &c.,  M.  H.,  &c.  {setting 
forth  addition,  birth  of  child,  8fc.,  and  proceeding)  :  on  the  said 
child  "did  make  an  assault:  and  that  the  said  M.  H.,  her  the 
said  new-born  child,  with  both  her  hands,  in  a  certain  piece  of 
flannel  of  no  value,  then  and  there  feloniously,  wilfully,  and  of 
her  malice  aforethought,  did  wrap  up  and  fold,  by  means  of  which 
said  wrapping  up  and  folding  the  said  new-born  female  bastard 
child  in  the  piece  of  flannel  aforesaid,  she  the  said  new-born  female 
child  was  then  and  there  suffocated  and  smothered  ;  of  which 
said  suffocation  and  smothering  she  the  said  new-born  female 
child,  then  and  there  instantly  died  ;  and  so  the  jurors  aforesaid," 
&c. 

(n)  R.  V.  Iluggins,  3  C.  &  P.  414.  Three  exceptions  were  taken  to  this  in- 
quisition :  1st.  That  the  time  was  imperfectly  stated;  2d.  Tliat  there  was  no  im- 
putation to  the  prisoner  of  any  act  sufficient  to  cause  death ;  and  3d.  That  there 
was  a  variance  in  the  name  of  one  of  the  grand  jury.  Vaughan,  B.  quashed 
the  inquisition  on  the  latter  ground,  holding  that  the  indictment  was  itself  good. 

114 


HOMICIDE.  (l-l'^) 

(145)  Murder  hy  stamping,  heating,  and  kicldng. 

That  T.  V.  Jr.,  late  of  the  said  county,  yeoman,  not  having 
the  fear  of  God  before  his  eyes,  but  being  moved  and  seduced 
by  the  instigation  of  the  devil,  on  the  eleventh  day  of  October, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  fifteen, 
at  the  said  County  of  Chester,  in  and  upon  one  N.  R.,  in  the 
peace  of  God  and  the  commonwealth,  then  and  there  being, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  make 
an  assault;  and  that  the  said  T.  V.  Jr.,  then  and  there  with  both 
his  hands,  the  said  N.  R.,  in  and  upon  the  head,  neck,  and  breast' 
of  him  the  said  N.  R.,  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  strike  and  beat;  and  that  the  said  T.  V.  Jr., 
then  and  there,  with  both  his  hands  and  feet,  the  said  N.  R.,  so 
and  upon  the  ground,  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  knock,  cast,  and  throw ;  and  the  said  N.  R.,  so 
on  the  ground  lying  and  being,  he  the  said  T.  V.  Jr.,  with  both 
his  hands,  knees,  and  feet,  in  and  upon  the  head,  neck,  breat^t, 
stomach,  back,  and  sides  of  him  the  said  N.  R.,  did  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  strike, 
beat,  press,  and  kick;  and  that  the  said  T.  V.  Jr.,  then  and  there 
the  said  N.  R.,  by  and  upon  the  neck  and  throat  of  him  the  said 
N.  R.J  with  both  the  hands  of  him  the  said  T.  V.  Jr.,  did  feloni- 
ously, wilfully,  and  of  his  malice  aforethought,  grasp  and  seize, 
thereby  choking  and  strangling  the  said  N.  R.,  and  by  the  said 
striking,  beating,  casting,  throwing,  pressing,  and  kicking,  giving 
to  the  said  N.  R.  several  mortal  bruises  ;  of  which  said  several 
mortal  bruises,  choking,  and  strangling,  the  said  N.  R.  then  and 
there  instantly  died. 

And  so  the  inquest  aforesaid,  on  their  oaths  and  affirmations 
aforesaid,  do  say  that  the  said  T.  V.  Jr.,  the  day  and  year  afore- 
said, at  Chester  County  aforesaid,  in  manner  and  form  aforesaid, 
the  said  N.  R.,  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  kill  and  murder,  contrary  to  the  form  of  the  act  of 
general  assembly  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  Commonwealth  of  Pennsylvania. 

115 


(147)  OFFENCES    AGAINST    THE   PERSON.  ^ 

(146)  Murder  hy  heating  with  fists  and  kicJcing  on  the  ground,  no 

mortal  wound  being  discover ed.(o~) 
That  W.  W.,  late  of,  &c.,  on,  &c.,  at,  &c.,  with  force  and  arms, 
at  afore.-^aid,  &c..  in  and  upon  one  E.  D.,  in  the  peace  of 

God  and  the  said  commonwealth,  then  and  there  being,  feloni- 
ously, wilfully,  and  of  his  malice  aforethought,  did  make  an 
assault;  and  that  the  said  W.  W.  then  and  there  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  strike,  beat,  and 
kick  the  s^aid  E.  D,  with  his  hands  and  feet  in  and  upon  the  head, 
breast,  back,  belly,  sides,  and  other  parts  of  the  body  of  him  the 
said  E.  D.,  and  did  then  and  there  feloniously,  wilfully,  and  of 
his  malice  aforethought,  cast  and  throw  the  said  E.  D.  down  unto 
and  upon  the  ground  with  great  force  and  violence  there,  giving 
unto  the  said  E.  D.  then  and  there,  as  well  by  the  beating,  strik- 
ing, and  kicking  of  him  the  said  E.  D.,  in  manner  and  form 
aforesaid,  as  by  the  casting  and  throwing  of  him  the  said  E.  D. 
down  as  aforesaid,  several  mortal  strokes,  wounds,  and  bruises 
in  and  upon  the  head,  breast,  back,  belly,  sides,  and  other  parts 
of  the  body  of  him  the  said  E.  D.,  of  which  said  mortal  strokes, 
wounds,  and  bruises  he  the  said  E.  D.  from,  &c.,  until,  &c.,  at, 
&c.,  did  languish,  and  languishing  did  live  ;  on  which  said 
day  of  in  the   year  aforesaid,  the  said  E.  D.  at,  &c.,  of  the 

several  mortal  strokes,  wounds,  and  bruises  aforesaid,  died.  And 
s*o  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  W.  AV.  him  the  said  E,  D.,  in  the  manner  and  by  the  means 
aforesaid,  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  kill  and  murder.     [Conclude  as  in  book  1,  chapter  3.) 

(147)  For  stabbing,  casting  into  the  sea,  and  droivning  the  deceased 

on  the  high  sea,  ^c.(^p') 

The  jurors,  &c.,upon  their  oath  present,  that  A.  B.  [and  others, 
naming'  them),  being  citizens  of  the  United  States,  on  upon 

the  high  sea,  out  of  the  jurisdiction  of  any  particular  state,  in 
and  on  board  a  certain  schooner,  the  name  of  which  is  to  the 
jurors  aforesaid  unknown,  in  and  upon  one  C.  D.,  a  mariner  in 
and  on  board  said  vessel,  piratically  and  feloniously  did  make  an 

(o)   Stark.  C.  P.  419. 

(;>)  Davis'  Free.  228.     Tliis  was  the  form  in  U.  S.  v.  Ilolnies,  5  Wheat.  412, 

116 


HOMICIDE.  (148) 

assault,  and  that  he  the  said  A.  B.,  with  a  certain  steel  dagger, 
which  he  the  said  A.  B.  in  his  hand  then  and  there  had  and  held, 
the  said  C.  D.,  in  and  upon  the  breast  of  him  the  said  C.  D., 
upon  the  high  sea,  and  on  board  the  schooner  aforesaid,  and  out 
of  the  jurisdiction  of  any  particular  state,  piratically  and  feloni- 
ously did  strike  and  thrust,  giving  to  the  said  C.  D.,  in  and  upon 
the  breast  of  him  the  said  C.  D.,  upon  the  high  sea  aforesaid, 
in  and  on  board  the  said  schooner,  and  out  of  the  jurisdiction  of 
any  particular  state,  piratically  and  feloniously,  in  and  upon  the 
breast  of  him  the  said  C.  D.,  several  grievous,  dangerous,  and 
mortal  wounds  ;  and  did  then  and  there,  in  and  on  board  the 
schooner  aforesaid,  upon  the  high  sea,  and  out  of  the  jurisdiction 
of  any  particular  state,  piratically  and  feloniously,  him  the  said 
C.  D.  cast  and  throw  from  out  of  the  said  schooner  into  the  sea, 
and  plunge,  sink,  and  drown  him  in  the  sea  aforesaid  ;  of  which 
said  mortal  wounds,  casting,  throwing,  plunging,  sinking,  and 
drowning,  the  said  C.  D.,  in  and  upon  the  high  sea  aforesaid,  out 
of  the  jurisdiction  of  any  particular  state,  then  and  there  instantly 
died.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
say,  that  by  reason  of  the  casting  and  throwing  the  said  C.  D. 
in  the  sea  as  aforesaid,  they  cannot  describe  the  said  mortal 
wounds.  And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  say,  that  the  said  A.  B.  [and  others)  him  the  said  C.  D.,  then 
and  there,  upon  the  high  sea  aforesaid,  out  of  the  jurisdiction  of 
any  particular  state,  in  manner  and  form  aforesaid,  piratically 
and  feloniously  did  kill  and  murder;  against  the  peace  of  the 
said  United  States,  and  contrary  to  the  form  of  the  statute 
thereof  in  such  case  made  and  provided. 

(148)  Knocking  to  the  ground^  and  beating^  kicking,  and  wound- 
ing.(^q) 

That  R.  M.,  late  of  the  parish  of  Wakefield,  in  the  County  of 
York,  laborer,  and  B.  M.,  late  of  the  same  place,  laborer,  not 
having  the  fear  of  God  before  their  eyes,  but  being  moved  and 
seduced  by  the  instigation  of  the  devil,  on  the  thirtieth  day  of 
September,  in  the  fifth  year  of  the  reign   of  our  sovereign   lord 

(g)  R.  V.  Mo.sley,  1  Mood.  C.  C.  98.  This  form  was  sustained  by  the  twelve 
judges,  it  being  held  that  it  is  not  necessary  to  set  forth  the  length,  depth,  or 
breadth  of  the  wound. 

117 


(148)  OFFENCES   AGAINST   THE   PERSON. 

George  the  Fouiili,  by  the  grace  of  God,  of  the  United  Kingdom 
of  Great  Britain  and  Ireland,  king,  defender  of  the  faith,  with 
force  and  arms,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
in  and  upon  one  J.  D.,  in  the  peace  of  God  and  our  said  lord  the 
king,  then  and  there  being,  feloniously,  wilfully,  and  (5f  their 
malice  aforethought,  did  make  an  assault,  and  that, they,  the  said 
R.  M.  and  B.  M.,then  and  there  feloniously,  wilfully,  and  of  their 
malice  aforethought,  did  with  great  force  and  violence  pull,  push, 
cast,  and  throw  the  said  J.  D.  down  unto  and  upon  the  ground 
there,  and  that  the  said  R.  M.  and  B.  M.,  with  both  the  hands 
and  feet  of  them  the  said  R.  M.  and  B.  M.,  then  and  there,  and 
whilst  the  said  J,  D.  was  so  lying  and  being  upon  the  ground, 
him  the  said  J.  D.,  in  and  upon  the  head,  stomach,  breast,  belly, 
back,  and  sides  of  him  the  said  J.  D.,  then  and  there  feloniously, 
wilfully,  and  of  their  malice  aforethought,  divers  times  with  great 
force  and  violence  did  strike,  beat,  and  kick,  and  that  the  said 
R.  M.  and  B.  M.  with  both  the  hands,  feet,  and  knees  of  them, 
the  said  R.  M.  and  B.  M.,  and  each  of  them  then  and  there,  and 
whilst  the  said  J.  D.  was  so  lying  and  being  upon  the  ground  as 
aforesaid,  him  the  said  J.  D.,  in  and  upon  the  belly,  head,  stom- 
ach, and  sides  of  him  the  said  J.  D.,  then  and  there  feloniously, 
wilfully,  and  of  their  malice  aforethought,  did  with  great  force 
and  violence  strike,  push,  press,  and  squeeze,  giving  to  the  said 
J.  D.,  then  and  there,  as  well  by  the  pulling,  pushing,  casting,  and 
throwing  of  him  the  said  J.  D.  down  unto  and  upon  the  gi'ound 
as  aforesaid,  and  by  the  striking,  beating,  and  kicking  of  him  the 
said  J.  D.,  whilst  he  was  so  lying  and  being  upon  the  ground  as 
aforesaid,  in  and  upon  the  head,  stomach,  breast,  belly,  back,  and 
sides  of  him  the  said  J.  D.  as  aforesaid,  as  also  by  the  striking, 
pushing,  pressing,  and  squeezing  of  him  the  said  J.  D.,  whilst  he 
the  said  J.  D.  was  so  lying  and  being  upon  the  ground  as  afore- 
said, in  and  upon  the  belly,  breast,  stomach,  and  sides  of  him 
the  said  J.  D.,  wnth  the  hands,  knees,  and  feet  of  th«m,  the  said 
R.  M.  and  B.  M.,  in  manner  aforesaid,  several  mortal  bruises, 
lacerations,  and  wounds  in  and  upon  the  belly,  breast,  stomach, 
and  sides  of  him  the  said  J.  D.,  of  which  said  several  mortal 
bruises,  lacerations,  and  wounds  the  said  J.  D.,  from  the  said 
thirtieth  day  of  September,  in  the  fifth  year  of  the  reign  afore- 
said, until  the  tenth  day  of  October,  in  the  same  year,  in  the 
118 


HOMICIDE.  (149) 

parish  aforesaid,  in  the  county  aforesaid,  did  languish,  and  lan- 
guishing did  live;  on  which  tenth  day  of  October,  in  the  year 
aforesaid,  the  said  J.  D.,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  of  the  said  several  mortal  bruises,  lacerations,  and 
wounds,  died  ;  and  so  the  jurors  aforesaid,  upon  tlieir  oath  afore- 
said, do  say,  that  the  said  R.  M.  and  B.  M.  him  the  said  J.  D., 
in  manner  and  form  and  by  the  means  aforesaid,  feloniously, 
wilfully,  and  of  their  malice  aforethought,  did  kill  and  murder, 
against  the  peace  of  our  said  lord  the  king,  his  crown  and 
dignity. 

(149)  Murder  hy  striking  with  stones. (^r') 

That  J.  D.,  late  of,  &c.,  laborer,  J.  P.,  late  of,  &c.,  laborer,  and 
C.  T.,  late  of,  &c.,  laborer,  not  having  the  fear  of  God  before 
their  eyes,  but  being  moved  and  seduced  by  the  instigation  of 
the  devil,  on  the  sixteenth  July,  4  Geo.  IV.,  with  force  and 
arms,  at,  &c.,  in  and  upon  one  W.  W.,  in  the  peace,  &c.,  then  and 
there  being,  feloniously,  wilfully,  and  of  their  malice  aforethought, 
did  make  an  assault,  and  that  the  said  J.  D.,  J.  P.,  and  C.  T., 
with  certain  stones  of  no  value,  which  they  the  said  J.  D.,  J.  P., 
and  C.  T.  in  their  right  hands  then  and  there  had  and  held,  in 
and  upon  the  back  part  of  the  head  of  him  the  said  W.  W.  then 
and  there  feloniously,  wilfully,  and  of  their  malice  aforethought, 
did  cast  and  throw,  and  that  the  said  J.  D.,  J.  P.,  and  C  T.,  with 
the  stones  aforesaid,  so  as  aforesaid  cast  and  thrown,  the  aforesaid 
W.  W.,  in  and  upon  the  back  part  of  the  head  of  him  the  said 
W.  W.,  then  and  there  feloniously,  wilfully,  and  of  their  malice 
aforethought,  did  strike,  penetrate,  and  wound,  then  and  there 
giving  to  the  said  W.  W.,  by  the  casting  and  throv^'ing  of  the 
stones  aforesaid,  in  and  upon  the  back  part  of  the  head  of  him 
the  said  W.  W.,  one  mortal  wound,  bruise,  fracture,  and  contu- 
sion, of  the  breadth  of  one  inch,  and  of  the  depth  of  half  an  inch,  of 
which  said  mortal  wound,  bruise,  fracture,  and  contusion  he  t.he 
said  W.  W.,  then  and  there  instantly  died.  And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  J.  D., 

(r)  R.  V.  Dale,  9  Moore,  19.  An  arrest  of  judgment  was  asked,  first,  because 
the  number  of  stones  was  uncertain  ;  and,  secondly,  because  it  was  not  stated  in 
which  hand  of  the  several  defendants  they  were  held.  The  twelve  judges, 
however,  held  the  indictment  good,  and  the  prisoner  was  executed.    See  note  (s). 

119 


(150)  OFFENCES   AGAINST   THE    PERSON. 

J.  P.,  and  C.  T.  him  the  said  W.  W.,  in  the  manner  and   by  the 
means  aforesaid,  feloniously,  wilfully,  and  of  their  malice  afore 
thought,  did  kill  and  murder,  against  the  peace,  &c.(6-) 

(150)  Murder  by  casting  a  stone.(C) 

That  A.  B.,  late  of  the  said  yeoman,  on  the  day  of 

in  the  year  of  our  Lord  one  thousand,  6|tc.,  with  force  and 
arms,  at  aforesaid,  in  the  county  aforesaid,  in  and  upon  one 

M.,  in  the  peace  of  God  and  of  the  said  commonwealth,  then 
and  there  being,  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  make  an  assault,  and  that  the  said  A.  B.,  a  certain 
stone  of  no  value,  which  he  the  said  A.  B.  in  his  right  hand  then 
and  there  had  and  held,  in  and  upon  the  right  side  of  the  head,  near 
the  right  temple  of  her  the  said  M.,  then  and  there  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  cast  and  throw  ;  and 
that  the  said  A.  B.  with  the  stone  aforesaid,  so  as  aforesaid  cast 

(s)  On  the  verdict  of  guilty  being  recorded,  Mr.  D.  F.  Jones  moved  in  arrest 
of  judgment,  that  the  indictment  was  defective  in  form  on  the  following  grounds  : 
First,  that  after  the  words  "  certain  stones  "  there  should  have  been  a  videlicet 
mentioning  the  number  of  stones.  Secondly,  that  it  was  not  expressed  in  what 
hand  they  were  held  by  each  of  the  defendants.  And,  lastly,  that  the  mode  of 
causing  the  death  was  not  properly  stated. 

Judgment  was  accordingly  respited,  and  the  above  points  reserved  for  the 
consideration  of  the  twelve  judges,  and  were  now  argued  for  the  prisoner.  Dale, 
by  Mr.  D.  F.  Jones,  who  cited  as  to  the  first,  The  King  v.  Beech,  1  Leach,  C. 
C.  3d  ed.  1.59  ;  Hale's  P.  C.  vol.  ii.  pp.  1S2,  185.  Secondly,  Hale's  P.  C.  vol.  ii. 
p.  185  ;  Cuppledick's  case,  44  Eliz.  K.  B.  ;  Ld.  Sanchar's  case,  9  Rop.  119. 

[Ld.  Chief  Justice  Abbott.  It  is  very  possible  that  ten  stones  may  produce 
one  mortal  wound.] 

[Mr.  Justice  Bayley.  If  a  man  give  two  blows  they  may  only  produce  one 
wound ;  and  it  cannot  be  for  a  moment  supposed  that  it  would  be  necessary  to 
allege  the  number  of  shots  in  a  gun,  and  they  receive  an  impetus  from  the  gun 
as  stones  thrown  by  the  hand.] 

Thirdly,  a  case  before  Mr.  Justice  Chambre,  at  the  Spring  Assizes  at  York, 
180G. 

[Mr.  Justice  Holroyd.  The  verbs  cast  and  throw  may  be  used  either  in  an 
active  or  neuter  sense,  as  to  throw  at  backgammon,  or  with  dice,  or  to  cast  or 
throw  with  a  net  into  the  sea ;  and  the  latter  part  of  this  indictment  shows  that 
they  had  been  used  in  the  latter  sense.] 

Mr.  J.  Park  was  to  have  argued  on  the  part  of  the  crown ;  but  the  judges 
were  unanimously  of  opinion  that  the  conviction  was  right. 

The  convict  was  afterwards  executed. 

(0  Stark.  C.  P.  424.     See  R.  v.  Dale,  1  Mood.  C.  C.  5. 

120 


\ 


HOMICIDK.  (151) 

and  thrown,  tho  aforesaid  M.,  in  and  upon  the  right  side  of  the 
head,  near  the  right  temple  of  her  the  said  M.,  then  and  there 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  strike, 
pi'nctrate,  and  wound  ;  giving  to  the  said  M.,  by  the  casting  and 
throwing  of'the  stone  aforesaid,  in  and  upon  the  right  side  of  the 
head,  near  the  right  temple  of  her  the  said  M.,  one  mortal  wound, 
of  the  length  of  one  inch,  and  of  the  depth  of  one  inch,  of  which 
said  mortal  wound  she  the  said  M.,  from  the  said  day  of 

in  the  year  aforesaid,  until  the  day  of  in  the  same  year, 

at  aforesaid,  at  the  county  aforesaid,  did  languish,  and   lan- 

guishing did  live  ;  on  which  said  day   of  in   the  year 

aforesaid,  the  said  M.,  at  aforesaid,  in  the  county  aforesaid, 

of  the  said  mortal  wound,  died.  And  so  the  jurors  aforesaid, 
upon  their  oath  [or  oaths  and  affirmations)  aforesaid,  do  say,  that 
the  said  A.  B.  her  the  said  M.,  in  the  manner  and  by  the  means 
aforesaid,  feloniously,  wilfully,  and  of  his  malice  aforethought,  d'id 
kill  and  murder.     ( Conclude  as  in  book  1,  chapter  3.) 

(151)  3furder  hy  striking  with  a  stone. (ii) 

That  E.  W.,  not  having  the  fear  of  God  before  his  eyes,  &c., 
on  the  twenty-third  day  of  July,  one  thousand  eight  hundred  and 
twelve,  with  force  and  arms,  at,  &c.,  in  and  upon  one  S.  S.,  in  the 
peace  of  God,  &c.,  then  and  there  being,  feloniously,  wilfully,  and 
of  his  malice  aforethought,  did  make  an  assault ;  and  that  the  said 
E.  W.  [loith]  a  certain  stone  of  no  value,  which  he  the  sa-id  E.  W. 
in  his  right  hand  then  and  there  had  and  held,  in  and  upon  the 
right  side  of  the  head,  near  the  right  temple  of  him  the  said  S. 
S.,  then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  cast  and  throw;  and  that  he  the  said  E.  W.,  with 
the  stone  aforesaid,  so  as  aforesaid  cast  and  thrown,  the  afore- 
said S.  S.,  in  and  upon  the  right  side  of  the  head,  near  the  right 
temple  of  him  the  said  S.  S.,  then  and  there  feloniously,  wilfully, 

(w)  "White  V.  Com.,  6  Binn.  179.  The  first  objection  to  this  count  arising 
from  the  interpolation  of  the  word  "  with  "  in  the  sixth  line,  was  treated  by  the 
court  as  arising  from  a  clerical  error,  and  as  not  so  far  affecting  the  sense  of  the 
averment  as  to  vitiate  it.  It  is  not  necessary,  it  was  said  also,  to  distinguish 
between  the  two  degrees  in  an  indictment  for  homicide.  So  far  as  the  indict- 
ment was  concerned,  the  judgment  of  the  court  below  on  a  verdict  of  murder  in 
the  first  degree  was  sustained. 

121 


(152)  OFFENCES   AGAINST   THE    PERSON. 

and  of  bis  malice  aforethought,  did  strike,  penetrate,  and  wound, 
giving  to  the  said  S.  S.,  by  the  casting  and  throwing  of  the  stone 
aforesaid,  in  and  upon  the  right  side  of  the  head,  &c.,  one  mortal 
wound,  of  the  length  of  two  inches,  and  of  the  depth  of  one  inch, 
of  which  said  mortal  wound  the  said  S.  S.  then  and  there  in- 
stantly died  ;  and  so  the  jurors  aforesaid,  upon  their  oaths,  &c.,  say, 
that  the  said  E.  W.,  him  the  said  S.  S.,  in  manner  and  form 
aforesaid,  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
kill  and  murder.     [Conclude  as  in  booh  1,  chapter  3.) 

(152)   By  striking  with  an  axe  on  the  necJc.(^w') 

That  J.  M.,  late  of  said  county,  laborer,  not  having  the  fear  of 
God  before  his  eyes,  but  being  moved  and  seduced  by  the  insti- 
gation of  the  devil,  on  the  twenty-fifth  day  of  March,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  thirty-two, 
with  force  and  arms,  at,  to  wit,  in  the  County  of  Jackson  afore- 
said, in  and  upon  one  S.  W.,  in  the  peace  of  God  and  the  State, 
then  and  there  being,  feloniously,  wilfully,  unlawfully,  and  of  his 
malice  aforethought,  did  make  an  assault,  and  the  said  J.  M., 
with  a  certain  axe  made  of  iron  and  steel,  of  the  value  of  one 
dollar,  which  he  the  said  J.  M.,  in  both  his  hands  then  and  there 
held,  the  said  S.  W.,  in  and  upon  the  right  side  of  the  neck  of 
him  the  said  S.  W.,  between  the  head  and  shoulder  of  him  the 
said  S.  W.,  then  and  there  unlawfully  and  of  his  malice  afore- 
thought, did  strike,  thrust,  and  penetrate,  giving  to  the  said  S.  W., 
then  and  there,  with  the  axe  aforesaid,  in  and  upon  the  right  side 
of  the  neck  of  him  the  said  S.  W.,  between  the  head  and  shoul- 
der of  him  the  said  S.  W.,  one  mortal  wound,  of  the  length  of  ten 
inches,  and  of  depth  of  four  inches,  of  which  said  mortal  wound, 
the  said  S.  W.,  in  the  County  of  Jackson  aforesaid,  on  the  day 
aforesaid,  and  the  year  aforesaid,  did  instantly  die  ;  and  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said 
J.  M.,  the  said  S.  W.,  in  manner  and  form  aforesaid,  unlawfully, 
and  of  his  malice  aforethought,  did  kill  and  murder.  (Con- 
clude as  in  book  1,  chapter  3.) 

(w)  This  form  was  sustained  in  Mitchell  v.  State,  8  Ycrg.  515. 
122 


HOMICIDE.  (155) 

(153)  By  strilcing  tcith  a  knife  on  the  hip,  the  death  occurring 
in  another  State. (x) 
That  W.  I).,  late  of  the  said  County  of  Stokes,  laborer,  not 
having  the  fear  of  God  before  his  eyes,  but  being  moved  and  se- 
duced by  the  instigation  of  the  devil,  on  the  thirteenth  day  of 
August,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
forty-two,  with  force  and  arms,  in  the  county  aforesaid,  in  and 
upon  one  A.  H.,  in  the  peace  of  God  and  the  State,  then  and  there 
being,  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
make  an  assault,  and  that  the  said  W.  D.,  with  a  certain  knife  of 
the  value  of  sixpence,  which  he  the  said  W.  D.,  in  his  right  hand 
then  and  there  had  and  held,  the  said  A.  H.,  in  and  upon  the 
right  hip  and  the  left  side  of  the  back  near  the  back-bone  of  him 
the  said  A.  H.  then,  and  there,  feloniously,  wilfully,  and  of  his  mal- 
ice aforethought,  did  strike  and  thrust,  giving  to  the  said  A.  H., 
then  and  there  with  the  knife  aforesaid,  in  and  upon  the  said  right 
hip  and  the  left  side  of  the  back  near  the  back-bone  of  the  said 
A.  H.,  several  mortal  wounds,  each  of  the  breadth  of  three  inches, 
and  of  the  depth  of  six  inches,  of  which  said  several  mortal 
wounds  the  said  A.  H.,  from  the  said  thirteenth  day  of  August, 
in  the  year  aforesaid,  until  the  twenty-ninth  day  of  the  same  month 
of  August,  in  the  year  aforesaid,  as  well  as  in  the  county  afore- 
said, as  in  the  County  of  Patrick,  in  the  State  of  Virginia,  did 
languish,  and  languishing  did  live,  on  which  said  twenty-ninth 
day  of  August,  in  the  year  aforesaid,  the  said  A.  H.,  in  the  said 
County  of  Patrick,  in  the  State  of  Virginia,  of  the  said  several 
mortal  wounds  died;  and  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  W.  D.,  the  said  A.  H.,  in 
manner  and  by  the  means  aforesaid,  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  kill  and  murder.  ( Conclude  as  in 
book  1,  chapter  3.) 

(155)   Murder  by  stabbing  ivith  a  knife.  (2) 
That  A.  B.,  late  of  the  said  county,  yeoman,  on  the  day 

(x)  In  this  form,  which  was  sustained  in  North  Carolina,  State  v.  Dunkley,  3 
Iredell,  1 1 7,  the  statutory  conclusion  was  omitted  ;  and  the  same  feature  was  sus- 
tained in  Com.  v.  White,  6  Binn.  183.     See  ante,  2,  note  {k). 

(2)  Stark.  C.  P.  424.     See  form  for  "Cutting  Throat,"  ante,  116. 

123 


(156)  OFFENCES   AGAINST   THE   PERSON. 

of  in  tlie  year  of  our  Lord,  &c.,  with  force  and  arms,  at 

aforesaid,  in  the  county  aforesaid,  in  and  upon  one  J.  M., 
in  the  peace  of  God  and  of  the  said  State,  then  and  there  being, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  make  an 
assault,  and  that  he  the  said  A.  B  ,  with  a  certain  knife  of  the 
value  of  sixpence,  which  he  the  said  A.  B.,  in  his  right  hand  then 
and  there  had  and  held,  the  said  J.  M.,  in  and  upon  the  left  side 
of  the  belly,  between  the  short  ribs  of  him  the  said  J.  M.,  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
strike  and  thrust,  giving  to  the  said  J.  M.,  then  and  there,  with 
the  knife  aforesaid,  in  and  upon  the  aforesaid  left  side  of  the 
belly,  between  the  short  ribs  of  him  the  said  J.  M.,  one  mortal 
wound,  of  the  breadth  of  three  inches,  and  of  the  depth  of  six 
inches,  of  which  said  mortal  wound  the  said  J.  M,,  from  the  said 

day  of  in  the  year  aforesaid,  until  the  day  of 

in  the  same  year,  at  aforesaid,  in  the  county  aforesaid,  did 

languish,  and  languishing   did  live  ;   on   which  said  day  of 

in   the  year  aforesaid,  the  said  J.  M.,  at  aforesaid,  in 

the  county  aforesaid,  of  the  said  mortal  wound  died.  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  A.  B.,  him  the  said  J.  M.,  in  the  manner  and  by  the  means 
aforesaid,  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  kill  and  murder.     [Conclude  as  in  book  1,  chapter  3.) 

(156)  Murder.     Against  J.  T.  for  shooting  the  deceased^  arid  against 
A.  S.for  aiding  and  abetting. (^b^ 

That  J.  T.,  late,  &c.,  and   A,  S.,  late,  &c.,  on  the  day  of 

in  the  year,  &c.,  with  force  and  arms,  at  aforesaid,  in 

the  county  aforesaid,  in  and  upon  one  S.  G.,  in  the  peace  of 
God,  and  of  our  said  lord  the  king,  then  and  there  being,  felo- 
niously, wilfully,  and  of  their  malice  aforethought,  did  make  an 
assault;  and  that  the  said  J.  T.,  a  certain  gun  called  a  carbine, 
of  the  value  of  ten  pounds,  then  and  there  charged  with  gun- 
powder and  a  leaden  bullet,  which    said   gun   he  the  said  J.  T., 

(b)  Stark.  C.  P.  423;  R.  v.  Taylor  and  Shaw,  Leach,  398.  A.  S.  was  found 
guilty  and  J.  T.  acquitted  ;  and  a  majority  of  the  judges  were  of  opinion  that  the 
conviction  of  A.  S.  was  good,  but  the  prisoner  afterwards  received  a  free  pardon. 
See  Stark.  C.  P.  88,  89. 

See  for  other  form  for  "  Shooting,"  115,  117. 

124 


IIOMFCIDR.  (157) 

in  both  his  hands  then  and  there  had  and  i)(*Id,  at  and  against 
the  said  S.  G.,  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethonoht,  did  shoot  off  and  discharge  ;  and  that  the 
said  J.  T.,  with  the  leaden  bullet  aforesaid,  by  means  of  shoot- 
ing off  and  discharging  the  said  gun  so  loaded,  to,  at,  and  against 
the  said  S.  G,  as  aforesaid,  did  then  and  there  feloniously,  wilfully, 
and  of  his  malice  aforethought,  strike,  penetrate,  and  wound  the 
said  ^5.  G.,  in  and  upon  the  right  side  of  the  head  of  him  the  said 
S.  G.,  near  his  right  temple,  giving  to  him  the  said  S.  G.,  then 
and  there,  with  the  leaden  bullet  aforesaid,  by  means  of  shooting 
off  and  discharging  the  said  gun  so  loaded,  to,  at,  and  against 
the  said  S.  G.,  and  by  such  striking,  penetrating,  and  wounding 
the  said  S.  G.,  as  aforesaid,  one  mortal  vvound  in  and  through 
the  head  of  him  the  said  S.  G.,  of  which  said  mortal  wound  the 
said  S.  G.  did  then  and  there  instantly  die  ;  and  that  the  said  A. 
S.,  then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, was  present  aiding,  helping,  abetting,  comforting,  assist- 
ing, and  maintaining  the  said  J.  T.  in  the  felony  and  murder 
aforesaid,  in  manner  and  form  aforesaid,  to  do  and  commit,  &c., 
&c.     [Cuncliide  as  i?i  book  1,  chapter  3.) 

(157)   Murder  of  a  bastard  child.(^c) 

That  A.  B.,  late  of,  &c.,  spinster,  on,  &c.,  being  big  with  a 
male  [tJie  sex  is  material)  child,  on  the  same  day  and  year,  at,  &c., 
by  the  providence  of  God,  did  bring  forth  the  said  child  alive,(f/) 
of  the  body  of  her  the  said  M.,  alone(e)  and  in  secret;  which 
said  male  child,  so  being  born  alive,  by  the  laws  of  this  realm, 
was  a  bastard  ;  and  that  the  said  A.  B.  afterwards,  to  wit,  on, 
&c.,  as  soon  as  the  said  male  bastard  child  was  born,  with  force 
and  arms,  at,  &c.,  in  and  upt)n  the  said  cliild,  feloniously,  wilfully, 
and  of  her  malice  aforethought,  did  make  an  assault;  and  that 
she  the  said  M.,  with  both  her  hands  about  the  neck  of  him  the 

(f)   Stark.  C.  P.  425.     As  to  concealing  bastard  child,  see  post,  183-4,  5. 

{(l)  If  upon  view  of  the  child,  it  be  testified  by  one  witness,  by  apparent 
probabilities,  that  the  child  was  not  come  to  its  deh'Uum  partus  temjius,  as  if  it 
have  no  hair  or  nails, or  other  circumstances;  "this"  (says  Lord  Hale)  "I  have 
always  taken  to  be  a  proof  by  one  witness,  that  the  child  Avas  born  dead,  so  as  to 
leave  it  nevertheless  to  the  jury,  as  upon  a  common  law  evidence,  whether  she 
wore  jruilty  of  the  death  or  not."      Stark.  C.  P.  42(). 

('•)   These  words  do  n')t  nppenr  to  be  necessary.     lb. 

123 


(168)  OFFENCES    AGAINST   THE    PERSON. 

said  child,  then  and  there  fixed,  hiin  the  said  child,  then  and  there 
feloniously,  wilfully,  and  of  her  malice  aforethought,  did  choko 
and  strangle,  of  which  said  choking  and  strangling,  the  said  child 
then  and  there  instantly  died;  and  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  A.  B.,  him  the  said 
male  bastard  child,  in  form  aforesaid,  feloniously,  wilfully,  and 
of  her  malice  aforethought,  did  kill  and  murder,  against  the 
peace,  &c. 

(158)    Throioing  a  bastard  child  in  a  privy. (f) 

That  C.  D.,  late  of  said  B.,  singlewoman,  on  the  day  of 

now  last  past,  being  pregnant  with  a  female  child^  after- 
wards, to  wit,  on  the  same  day  of  in  the  year  aforesaid, 
at  B.  aforesaid,  the  said  female  child,  alone  and  in  secret  from 
her  body  did  bring  forth  alive,  which  said  female  child,  so  born 
alive,  was,  by  the  laws  of  this  commonwealth,  a  bastard  ;  and  that 
the  said  C.  D.,  afterwards,  to  wit,  on  the  same  day  of 
in  the  year  aforesaid,  with  force  and  arms,  at  B.  aforesaid,  in  the 
county  aforesaid,  in  and  upon  the  said  female  bastard  child,  felo- 
niously, wilfully,  and  of  her  malice  aforethought,  did  make  an 
assault;  and  that  the  said  C.  D.,  with  both  her  hands,  the  said 
female  bastard  child,  into  a  certain  privy  there  situate,  wherein 
was  a  great  quantity  of  human  excrements  and  other  filth,  then 
and  there  feloniously,  wilfully,  and  of  her  malice  aforethought, 
did  cast  and  throw;  by  reason  of  which  said  casting  and  throw- 
ing of  the  said  female  bastard  child  into  the  said  privy,  by  her 
the  said  C.  D,,  in  manner  as  aforesaid,  the  said  female  bastard 
child,  in  the  said  privy,  with  the  excrements  and  filth  aforesaid, 
was  then  and  there  choked  and  suffocated  ;  of  which  said  chok- 
ing and  suffocation  the  said  female  bastard  child  then  and  there 
instantly  died.  And  so  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  say,  that  the  said  C.  D.  the  said  female  bastard  child,  in 
manner  and  form  aforesaid,  feloniously,  wilfully,  and  of  her  mal- 
ice aforethought,  did  kill  and  murder.  [Conclude  as  in  book  1, 
chapter  3.) 

(/)   3  Chit.  C.  L.  767.     This  form,  and  that  which  follows  it,  are  introduced 
by  Mr.  Davis,  as  conforming  to  the  Massachusetts  statute. 

126 


HOMICIDE.  (160) 

(ir,9)  Smothering  a  bastard  child  in  a  linen  cloth. (g') 
That  C.  D.,  of  said  B.,  singlewoman,  on  the  day  of 

now  last  past,  at  B.  aforesaid,  in  the  county  aforesaid,  being  preg- 
nant with  a  certain  female  child,  afterwards,  to  wit,  on  the  same 
day  of  in  the  year  aforesaid,  at  B.  aforesaid,  the  said 

female  child,  alone  and  secretly  from  her  body  did  bring  forth 
alive,  which  said  female  child,  so  born  alive,  was,  by  the  laws  of 
this  commonwealth,  a  bastard;  and  that  the  said  C.  D.  after- 
wards, to  wit,  on  the  same  day  of  in  the  year  aforesaid, 
with  force  and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in 
and  upon  the  said  female  bastard  child,  feloniously,  wilfully,  and 
of  her  malice  aforethought,  did  make  an  assault;  and  that  the 
said  C.  D.,  with  both  her  hands,  the  said  female  bastard  child,  in 
a  certain  linen  cloth,  feloniously,  wilfully,  and  of  her  malice  afore- 
thought, did  put,  place,  fold,  and  wrap  up;  by  means  of  which 
said  putting,  placing,  folding,  and  wrapping  up  of  the  said  female 
bastard  child,  in  the  said  linen  cloth,  by  her  the  said  C.  D.  as 
aforesaid,  the  said  female  bastard  child  was  then  and  there 
choked,  suffocated,  and  smothered;  of  which  said  choking,  suffo- 
cation, and  smothering,  the  said  female  bastard  child  then  and 
there  instantly  died.  And  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  C.  D.  the  said  female  bastard 
child,  in  manner  and  form  aforesaid,  feloniously,  wilfully,  and  of 
her  malice  aforethought,  did  kill  and  murder.  {Conclude  as  in 
book  1,  chapter  3.) 

(160)  Murder  in  PennsT/lvania,  of  a  hazard  child  by  strangling.  (Ji) 

That  U.  S.,  of  the  county  aforesaid,  spinster,  on  the  twenty- 
second  day  of  September,  A.  D.  one  thousand  eight  hundred  and 
seven,  being  big  with  a  female  child,  the  same  day  and  year,  in 
the  county  aforesaid,  by  the  providence  of  God  did  bring  forth 
the  said  child  alive  of  the  body  of  her  the  said  U.,  alone  and  in 
secret,  which  said  female  child,  so  being  born  alive,  by  the  laws 
of  this  commonwealth,  was  a  bastard  ;  and  that  the  said  U.,  not 
having   the  fear  of  God  before  her   eyes,  but  being   moved   and 

{g)   See  Davis'  Prec.  178. 

(li)  This  indictment  was  sustained  after  a  conviction  in  Pennsylvania,  in  1807. 
See  for  other  foi-ms  for  strangling,  123,  128. 

127 


(161)  OFFENCES   AGAINST   THE   PERSON. 

srduc'Cil  by  the  iiistigition  of  the  devil,  afterwards,  to  wit,  on  the 
twenty-second  day  of  September,  A.  D.  one  thousand  cii2,ht  hun- 
dred and  seven,  as  soon  as  the  said  female  cliild  was  born,  with 
force  and  arms,  at  the  county  aforesaid,  in  and  upon  the  said  child, 
in  the  peace  of  Ciod  and  this  commonwealth,  then  and  there  being, 
feloniously,  wilfully,  and  of  her  malice  aforethought,  did  make 
an  assault,  and  that  she  the  said  U.,  with  both  her  hands  about 
the  lu'ck  of  her  the  said  child,  then  and  there  feloniouslv,  wilfully, 
and  of  her  malice  aloretlionght,  did  choke  and  strangle  ;  of  which 
said  choking  and  strangling,  the  said  child  then  and  there  in- 
stantly died.  And  so  the  inquest,  &c.,  do  say,  that  the  said  U. 
S.,  her  the  said  female  bastard  child,  in  manner  and  form  afor(>- 
said,  feloniously,  wilfully,  and  of  her  malice  aforethought,  did  kill 
and  murder,  contrary  to  the  form  of  the  act,  &c.,  and  against  the 
peace  and  dignity,  &c. 

(IGl)   3Iurder.     By  starving  a})prcntiet\(]i^^ 

iMiddlescx,  to  wit:  The  jurors  for  our  lady  the  queen,  upon 
their  oaths  present,  that  J.  S.,  late  of  the  parish  of  B.,  in  the 
County  of  JM.,  carpenter,  not  having  the  fear  of  God  before  his 
eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,  and  of  his  malice  aforethought,  contriving  and  intending 
one  J.  N.,  then  being  an  apprentice  to  him  the  said  J.  S.,  felo- 
niously to  starve,  kill,  and  murdt?r,  on  the  third  day  of  August,  in 
the  ninth  year  of  the  reign  of  our  sovereign  lady  Victoria,  and  on 
divers  days  and  times  between  that  day  and  the  twenty-eighth  day 
of  the  same  month,  in  the  same  year,  with  force  and  arms,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  in  and  upon  the  said  J. 
N.,  his  apprentice  as  aforesaid,  in  the  peace  of  God  and  of  our  said 
lady  the  queen,  then  and  there  being,  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  make  divers  assaults  ;  and  that  the 

(/(')  Arch.  C.  P.  405.  If  the  indictment  be  for  rcfuiiing  to  supply  tlie  appren- 
tice with  necessaries,  it  must  state  that  tlie  apprentice  was  of  tender  years,  un- 
able to  provide  for  himself.  Reg.  v.  Friend,  R.  &  R.  20 ;  Reg.  v.  JNIarriott,  8  C.  & 
P.  424.  "Where  the  indictment  charges  an  imprisoning,  that  sufficiently  shows 
the  duty  to  supply  food  ;  but  if  it  do  not,  then  it  must  allege  a  duty  in  the  de- 
fendant to  supply  the  deceased  Avith  food.  Reg.  v.  Edwards,  8  C.  &  P.  611. 
See  as  to  evidence,  Arch.  C.  P.  406,  et  seq.  It  is  necessary,  also,  to  prove  that 
J.  N.  was  the  apprentice  of  J.  S.,  or  at  least  acted  as  such.     Arch.  C.  P.  513. 

128 


HOMICIDE.  (162) 

said  J.  S.,  on  the  said  third  day  of  August,  in  the  year  last  afore- 
said, at  the  parish  aforesaid,  in  the  county  aforesaid,  him  the  said 
J.  N.,  in  a  certain  room  in  the  dwelling-house  of  him  tiie  said  J.  S. 
there  situate,  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  secretly  confine  and  imprison,  and  that  the  said  J.  S.,  from  the 
said  third  day  of  August,  in  the  year  last  aforesaid,  until  the  twen- 
ty-eighth day  of  the  same  month,  in  the  same  year,  at  the  parish 
aforesaid,  in  tl)e  county  aforesaid,  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  neglect,  omit,  and  refuse  to  give  and  ad- 
minister, and  to  permit  and  suffer  to  be  given  and  administered 
to  him  the  said  J.  N.,  sufficient  meat  and  drink  necessary  for  the 
sustenance,  support,  and  maintenance  of  the  body  of  him  the  said 
J.  N. ;  by  means  of  which  said  confinement  and  imprisonment, 
and  also  of  such  neglecting  and  refusing  to  give  and  administer, 
and  to  permit  and  suffer  to  be  given  and  administered  to  the  said 
J.  N.,  such  meat  and  drink  as  were  sufficient  and  necessary  for 
the  sustenance,  support,  and  maintenance  of  the  body  of  him 
the  said  J.  N.,  he  the  said  J.  N.,  from  the  said  tliird  day  of  Au- 
gust, in  the  year  last  aforesaid,  until  the  twenty-eighth  day  of  the 
same  month,  in  the  same  year,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  did  languish,  &:c.,  &c. 

(102)  Manslaughter  hy  neglect.  First  county  that  the  deceased  was 
the  apjyrentice  of  pruoyier^  and  died  from  neglect  of  prisoner 
to  supply  him  ivithfood,  ^'-'•(0 

That  on  the  third  day  of  February,  one  thousand  eight  hun- 
dred and  forty-two,  at,  &c.,  one  R.  K.  (the  deceased)  was  then 
and  there  an  apprentice  to  one  J.  C.  (the  prisoner),  and  as  such 
apprentice  was  then  under  the  care  and  control  of  the  said  J.  C; 
and  that  it  then  and  there  became  and  was  the  duty  of  the  said 
J.  C,  during  the  time  aforesaid,  to  permit  and  suffer  the  said  R. 
K.  to  take  and  have  such  proper  exercise  as  was  necessary  and 
needful  for  the  bodily  health  of  the  said  R.  K.,  so  being  such  ap- 
prentice as  aforesaid  ;  and  it  then  and  there  became  and  was  the 
duty  of  the  said  J.  C.  to  find,  provide,  and  supply  the  said  R.  K., 
being  such  apprentice  as  aforesaid,  with  proper  and  necessary 
nourishment,  medicine,   medical  care,   and  attention  ;  and,  &c. 

(i)  K  V.  Crnmpton,  1  C.  &  M.  597.  See  for  same  when  death  did  not  ensue, 
post,  914,  &c. 

VOL.  I.  —9  229 


(164)  OFFENCES    AGAINST   THE    PERSON. 

[concluding-  by  averring  in  the  vsval  form  that  the  deceased  being 
weak  in  body,  the  prisoner  struck  and  beat  him,  and  forced, 
obliged,  and  compelled  him  to  work  for  an  unreasonable  time, 
and  would  not  allow  him  to  take  proper  exercise  and  recreation, 
and  neglected  to  supply  him  with  proper  nourishment  and  medi- 
cine, medical  care  and  attention,  by  means  whereof  he  died),  &c. 

(163)  Second  count  —  charging  hilling  hy  overwork  and  heating. 

(The  second  count  stated  that  the  prisoner,  in  and  upon  the 
deceased,  so  being  such  apprentice  as  aforesaid,  and  under  the 
care  and  control  of  him  the  said  J.  C.  as^  aforesaid,  and  so  being 
sick  and  weak  in  body  as  aforesaid,  in  the  peace  of  God  and  our 
said  lady  the  queen,  feloniously  did  make  an  asf<ault ;  and  that 
the  deceased  being  so  weak  in  body  as  aforesaid,  the  prisoner 
forced  him  to  work  for  certain  unreasonable  and  improper  times, 
and  beat  him,  by  means  whereof  he  died.) 

(164)  Manslaughter.    Against  a  woman  for  exposing  her  infant  child 
so  as  to  produce  death.  ( j) 

[Third  count.)  That  A.  W.,  of,  &c.,  on,  &:c.,  in  the  year  afore- 
said, with  force  and  arms,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  in  and  upon  a  certain  female  child  then  and  there  born 
of  the  body  of  the  said  A.  W.,  whose  name  is  to  the  jurors  afore- 
said unknown,  feloniously,  wilfully,  and  of  her  malice  afore- 
thought, did  make  an  assault.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  it  was  the  duty  of 
the  said  A.  W.  then  and  there  to  provide  proper  and  sufficient 
clothes,  covering,  and  protection  for  the  body  of  the  said  last  men- 

(y)  R.  V.  Walters,  1  C.  &  M.  1C5.  The  principle  determined  in  this  case  was, 
that  if  a  person  do  any  act  towards  anotlier,  who  is  helpless,  which  must  neces- 
sarily lead  to  the  death  of  that  other,  the  crime  amounts  to  murder ;  but  if  the 
circumstances  are  such  that  the  person  would  not  have  been  aware  that  the  re- 
sult would  be  death,  that  would  reduce  the  crime  to  manslaughter,  provided 
that  the  death  was  occasioned  by  an  unlawful  act,  but  not  such  an  act  as  showed 
a  malicious  mind.  It  was  said  that  if  the  defendant  had  left  her  child,  a  young 
infant,  at  a  gentleman's  door,  a  place  where  it  was  likely  to  be  found  and  taken 
care  of,  and  the  child  died,  it  would  be  manslaughter  only  ;  but  if  the  child  were 
left  in  a  remote  place,  where  it  was  not  likely  to  be  found,  e.  g.  on  a  barren 
heath,  and  the  death  of  the  child  ensued,  it  would  be  murder.  The  defendant 
was  convicted  of  manslaughter.     See  Wh.  C.  L.  §  1011. 

130 


HOMICIDE.  (164) 

tioned  female  child,  the  said  last  mentioned  female  child  being 
then  and  there  unable  to  provide  for  and  take  care  of  herself;  and 
that  the  said  A.  W.,  then  and  there,  contrary  to  her  duty  in  that 
behalf,  feloniously,  wilfully,  and  of  her  malice  aforethought,  with 
both  her  hands,  did  put  and  place  the  said  last  mentioned  female 
child  in  a  certain  common  and  public  highway  and  open  place 
there,  and  then  and  there  did  feloniously,  wilfully,  and  of  her 
malice  aforethought,  desert  and  leave  the  said  last  mentioned 
female  child  there  exposed  to  the  inclemency  of  the  weather, 
without  sufficient  clothes,  covering,  shelter,  and  protection  for  the 
body  of  the  said  last  mentioned  female  child.  By  means  of 
which  said  several  premises  in  this  count  mentioned,  the  said 
last  mentioned  female  child  became  and  was  mortally  sick,  weak, 
and  disordered  in  her  body ;  of  which  said  mortal  sickness,  weak- 
ness, and  disorder  aforesaid,  the  said  last  mentioned  female  child, 
on  and  from  the  said  thirteenth  day  of  April,  in  the  year  afore- 
said, until  the  fourteenth  day  of  the  same  month,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  did  languish,  and  languishing 
did  live,  and  then  and  there,  to  wit,  on  the  said  fourteenth  day 
of  April,  in  the  year  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  did  die.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say  that  the  said  A.  W.,  the  said  last 
mentioned  female  child,  in  manner  and  form  last  aforesaid,  feloni- 
ously, wilfully,  and  of  her  malice  aforethought,  did  kill  and  mur- 
der, against  the  peace  of  our  lady  the  queen,  her  crown  and 
dignitv. 

Fourth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  A.  W.  afterwards,  to  wit,  on  the  day  and 
year  first  aforesaid,  at  the  parish  aforesaid,  in  the  county  afore- 
said, being  big  with  a  certain  female  child,  the  same  female  child 
alone  and  secretly  from  her  body  did  then  and  there  bring  forth 
alive.  And  the  jurors  aforesaid,  upon  their  oatir  aforesaid,  do 
further  present,  that  it  then  and  there  became  and  was  the  duty 
of  the  said  A.  W.,  as  the  mother  of  the  same  child  (to  fasten,  tie, 
and  secure  the  navel  string  of  the  body  of  the  same  child,  and 
to  provide  and  procure  such  clothing,  covering,  and  shelter  for 
the  body  of  the  same  child  as  were  then  and  there  necessary  and 
sufficient  to  protect  and  defend  the  same  child  from  the  cold 

131 


1 


(164)  OFFENCES   AGAINST   THE    PERSON. 


and  inclemency  of  the  weather,  and  also  to  procure  for  and  give 
and  administer  to  the  same  child  such  milk  and  food  as  was  then 
and  there  necessary  and  sufficient  for  the  support  and  mainten- 
ance of  said  child).  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  A.  W.,  not  regarding 
her  duty  in  that  behalf,  but  being  moved  and  seduced  by  the 
instigations  of  the  devil,  on  the  day  and  year  first  aforesaid,  with  • 
force  and  arms,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
in  and  upon  the  same  child  not  named,  in  the  peace  of  God  and 
our  said  lady  the  queen,  then  and  there  being,  feloniously,  wil- 
fullvj  and  of  her  malice  aforethought,  did  make  an  assault ;  and 
that  the  said  A.  W.  the  same  child  into  both  her  hands  feloni- 
ously, wilfully,  and  of  her  malice  aforethought,  did  then  and  there 
take,  and  that  the  said  A.  W.  the  same  child  feloniously,  wilfully, 
and  of  her  malice  aforethought,  with  both  her  hands,  did  then 
and  there  put  and  place  in  a  certain  road  there  situate,  and  the 
same  child  in  the  said  road,  then  and  there,  feloniously,  wilfully, 
and  of  her  malice  aforethought,  did  expose,  leave,  and  abandon, 
naked  and  without  any  clothing,  covering,  or  shelter  whatever  to 
protect  the  body  of  the  same  child  from  the  cold  and  inclemency 
of  the  weather.f  And  that  the  said  A.  W.  did  then  and  there 
feloniously,  wilfully,  and  of  her  malice  aforethought,  wholly  neg- 
lect, omit,  and  refuse  to  tie,  fasten,  or  in  any  way  secure  the 
navel-string  of  the  body  of  the  same  child,  and  that  the  said  A. 
W.  did  then  and  there  feloniously,  wilfully,  and  of  her  malice 
aforethought,  wholly  neglect,  omit,  and  refuse  to  provide  and 
procure  any  clothing,  covering,  or  shelter  whatsoever  for  the  same 
child;  and  that  the  said  A.  W.  did  then  and  there  feloniously, 
wilfully,  and  of  her  malice  aforethought,  wholly  neglect,  omit, 
and  refuse  to  procure  for  or  to  give  or  administer  to  the  same 
child  milk  or  other  food  whatsoever,  by  means  of  which  said 
last  mentioned  exposure,  leaving,  and  abandonment  of  the  same 
child,  and  also  by  the  omitting  and  refusing  to  tie,  fasten,  and 
secure  the  navel-string  of  the  body  of  the  same  child  as  afore- 
said, and  to  provide  and  procure  clothing,  covering,  and  shelter 
for  the  body  of  the  same  child  as  last  aforesaid,  and  to  procure 
for  and  give  and  administer  to  the  same  child  milk  and  food  as 
last  aforesaid,!  the  same  child  from  the  time  of  its  birth  afore- 
said, on  the  day  and  year  first  aforesaid,  until  the  fourteenth  day 
132 


HOMICIDE.  (164) 

of  the  same  month,  at  the  parish  aforesaid,  in  the  county  afore- 
said, did  languish,  and  languishing  did  live;  on  which  said  four- 
teenth day  of  April,  in  the  year  aforesaid,  the  same  child,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  of  such  leaving,  aban- 
donment, and  exposure,  and  of  such  wilful  omission,  neglect,  and 
refusal  as  in  this  count  mentioned,  did  then  and  there  die.  And 
so  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  say,  that 
the  said  A.  W.  the  same  child  in  manner  and  form  last  aforesaid, 
feloniously,  wilfully,  and  of  her  malice  aforethought,  did  kill  and 
murder,  against  the  peace  of  our  lady  the  queen,  her  crown  and 
dignity. 

Fifth  count. 

{Exactly  similar  to  the  fourth,  hut  instead  of  the  parts  betiveen 
(  ),  inserting'  the  follotving)  :  To  protect  and  defend  the  same 
child  from  the  cold  and  inclemency  of  the  weather,  and  to  pro- 
vide and  procure  such  clothing,  covering,  and  shelter  for  the 
body  of  the  said  child  as  was  then  and  there  necessary  and  suffi- 
cient to  protect  and  defend  the  same  child  from  the  cold  and 
inclemency  of  the  weather,*  (And  instead  of  the  allegation  be- 
tiveen If,  inserting  the  following)  :  And  that  the  said  A.  W.  did 
then  and  there  feloniously,  wilfully,  and  of  her  malice  afore- 
thought, wholly  neglect,  omit,  and  refuse  to  protect  and  defend 
the  same  child  from  the  cold  and  inclemency  of  the  weather,  or 
to  provide  or  procure  any  clothing,  covering,  or  shelter  whatsoever 
for  the  same  child,**  by  means  of  which  said  last  mentioned  ex- 
posure, leaving,  and  abandonment  of  the  same  child,  and  also 
neglecting,  omitting,  and  refusing  to  protect  and  defend  the  same 
child  from  the  cold  and  inclemency  of  the  weather,  and  to  pro- 
vide and  procure  clothing  and  shelter  for  the  body  of  the  same 
child,  as  in  this  count  mentioned.*** 

Sixth  count. 

[Exactly  similar  to  the  fifth  count,  except  that  in  stating  the  duty 
of  the  2^nsoner,  the  following  words  were  added  at  the  *)  :  And 
also  to  procure  for,  and  give  and  administer  to  the  same  child, 
such  milk  and  food  as  was  then  and  there  necessary  and  suffi- 
cient for  the  support  and  maintenance  of  the  same  child.  [And 
in  slating  the  cause  of  the  death,  the  folloiving  allegation  was  in- 
serted at  the  **)  :   And  that  the  said  A.  W.  did  then  and  there 

133 


(165)  OFFENCES    AGAINST   THE   PERSON. 

feloniously,  wilfully,  and  of  her  malice  aforethought,  wholly 
neglect,  omit,  and  refuse  to  procure  for,  give,  or  administer  to  the 
same  child  any  milk  or  other  food  whatsoever.  (And  at  the  *** 
the  following'  was  inserted)  :  And  to  procure  for,  and  to  give  and 
administer  to  the  same  child,  milk  and  food  as  last  aforesaid. 

(165)  Manslaughter  —  hi/  forcing  an  aged  woman  out  of  her  house 
in  the  night,  ducking,  tarring,  feathering,  and  whipping  her. 

That  A.  B.,  C.  D.,  E.  F.,  G.  H.,  I.  J.,  and  K.  L.,  all  late  of 
the  county  aforesaid,  on  the  twentieth  day  of  March,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  fifty-one,  at  the 
County  of  Montgomery  aforesaid,  with  force  and  arms,  in  and 
upon  the  body  of  one  M.  N.,  then  and  there  being,  unlawfully 
did  make  an  assault,  and  that  they  the  said  A.  B.,  C.  D.,  E.  F., 
G.  H.,  I.  J.,  and  K.  L.,  did  then  and  there  unlawfully  and  forci- 
bly take  the  said  M.  N.  from  the  dwelling-house  wherein  she  was 
then  and  there  residing,  out  into  the  open  air,  and  that  they  did 
then  and  there  unlawfully  carry  and  force  along  the  said  M.  N., 
a  great  distance,  to  wit,  the  distance  of  two  hundred  yards,  and 
that  they  did  then  and  there  unlawfully  throw,  cast,  force,  push, 
and  dip  the  said  M.  N.  into  the  Great  Miami  River,  then  and 
there  flowing,  wherein  there  was  a  great  quantity  of  water, 
whereby  (this  being  in  the  night  season  of  the  said  day,  and  the 
said  M.  N.  being  then  and  there  an  old  woman,  and  just  taken 
from  her  dwelling-house  as  aforesaid)  the  said  M.  N.  was  then 
and  there  thoroughly  chilled,  and  that  they  did  then  and  there 
unlawfully  cast,  throw,  and  knock  the  said  M.  N.  down  unto  and 
upon  the  ground,  with  great  force  and  violence,  and  that  they 
did  then  and  there  unlawfully  drag  the  said  M.  N.  along  and 
upon  the  ground  a  great  distance,  to  wit,  the  distance  of  one 
hundred  yards,  and  that  they  did  then  and  there  unlawfully  force 
and  spread  in  and  upon  the  body  of  the  said  M.  N.  a  great 
quantity  of  tar,  and  a  great  quantity  of  feathers,  and  that  they 
did  then  and  there  unlawfully  strike,  beat,  whip,  and  kick  the 
said  M.  N.  with  their  hands  and  feet,  and  with  certain  switches, 
which  they  then  and  there  in  their  hands  had  and  held,  in  and 
upon  the  head,  neck,  breast,  back,  belly,  sides,  legs,  and  other 
parts  of  the  body  of  the  said  M.  N.,  then  and  there  giving  to  the 
said  M.  N.,  by  the  forcibly  taking  the  said  M.  N.  from  the  said 
134 


HOMICIDE.  (166) 

dwelling-house  as  aforesaid,  and  by  the  casting  and  throwing 
and  knocking  the  said  M.  N.  down  unto  and  upon  the  ground  as 
aforesaid,  and  by  the  dragging  her  along  and  upon  the  ground  as 
aforesaid,  and  by  the  pouring  and  spreading  the  said  tar  and  the 
said  feathers  in  and  upon  the  body  of  the  said  M.  N.  as  afore- 
said, several  mortal  injuries  in  and  upon  the  head,  neck,  breast, 
back,  belly,  sides,  legs,  and  other  parts  of  the  body  of  the  said 
M.  N.,  of  which  said  mortal  injuries  the  said  M.  N.,  from  the 
said  twentieth  day  of  March  in  the  year  aforesaid,  to  the  twenty- 
first  day  of  March  in  the  year  aforesaid,  in  the  county  aforesaid, 
did  languish,  and  languishing  did  live,  on  which  said  twenty- 
first  day  of  March  in  the  year  aforesaid,  at  the  county  aforesaid, 
the  said  M.  N.,  of  the  mortal  injuries  aforesaid,  died  :  And  so  the 
jurors  aforesaid,  on  their  oaths  aforesaid,  do  say,  that  the  said  A. 
B.,  C.  D.,  E.  F,,  G.  H,,  I.  J.,  and  K.  L.,  in  the  manner  and  by 
the  means  aforesaid,  her  the  said  M.  N.  unlawfully  did  kill  and 
slay,  contrary,  &c.,  and  against,  &c.(a) 

(166)  Manslaughter  —  against  the  keeper  of  an  asylum  for  pauper 
children^  for  not  supplying  one  of  them  with  proper  food  and 
lodging^  whereby  the  child  died.(b} 

The  jurors,  &c.,  upon  their  oath  present,  that  heretofore  and 
during  all  the  days  and  times  hereinafter  in  this  count  men- 
tioned, James  Andrews  was  a  poor,  indigent,  and  destitute  infant 
child  of  very  tender  age,  to  wit,  of  the  age  of  six  years,  and  un- 
able to  provide  himself  with  necessary  food,  shelter,  or  clothing, 
or  any  of  the  necessaries  of  life  ;  and  that  heretofore,  to  wit,  on 
the  twenty-eighth  day  of  October,  in  the  year  of  our  Lord 
Peter  Bartholomew  Drouet,  late  of  the  parish  of  Tooting,  in  the 
County  of  Surrey,  and  within  the  jurisdiction  of  the  said  Cen- 
tral Criminal  Court,  gentleman,  being  the  keeper  of  a  certain 
asylum  for  the  reception  of  poor,  destitute,  and  indigent  children, 
at  the  parish  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  to  wit,  called  and  known  by  the  name  of  Surrey  Hall,  at 
the  request  and  with  the  approbation  of  the  guardians  of  the 
poor  of  the  Holborn  Union,  in  the  County  of  Middlesex,  who 

(a)  Warren,  C.  L.  11. 

(b)  3  Cox,  C.  C.  Appendix,  p.  Ixxv.     For  starving  an  apprentice,  see  ante, 
161.     Wh.  C.  L.  §  1011. 

135 


(166)  OFFENCES    AGAINST   THE    PERSON. 

then  had  the  charge  and  custody  of  the  said  J.  A.,  and  then 
under  the  laws  of  this  realm  relating  to  the  relief  of  the  poor, 
were  charged  with  the  relief  and  support  of  the  said  J.  A.,  within 
their  said  union,  at  his  request  received,  and  had  the  said  J.  A. 
in  the  charge  and  custody  of  the  said  P.  B.  D.,  by  him  to  be  pro- 
vided with  good  and  proper  abode,  shelter,  and  lodging,  and  all 
the  necessary  sleeping  accommodation,  meat,  drink,  food,  and 
clothing,  for  and  on  behalf  of  the  said  guardians,  for  reward  to 
the  said  P.  B.  D.  in  that  behalf.  And  the  jurors  further  present, 
that  thenceforth  and  on  and  from  the  said  twenty-eighth  day  of 
October,  in  the  year  of  our  Lord  and  upon  and  during  all 

the  days  and  times  between  that  day  and  the  fifth  day  of  Jan- 
uary, in  the  year  of  our  Lord  the  said  P.  B.  D.  kept  and 
detained  the  said  J.  A.,  and  the  said  J.  A.  continued  and  re- 
mained, and  was  under  the  charge,  care,  dominion,  government, 
custody,  and  control  of  the  said  P.  B.  D.  in  the  said  asylum,  to 
wit,  at  the  parish  aforesaid,  and  within  the  jurisdiction  of  the  said 
Central  Criminal  Court,  and  the  said  J.  A.  was,  during  all  the 
several  days  and  times  aforesaid,  wholly  subject  to  and  depend- 
ent upon  the  said  P.  B.  D.  for  such  abode,  shelter,  lodging,  sleep- 
ing accommodation,  meat,  drink,  food,  and  clothing  as  aforesaid, 
and  was  unable  to  obtain  the  same,  or  any  of  them  from  any 
other  source,  or  from  any  other  person  or  persons  whomsoever. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  thereupon,  to  wit,  upon  the  said  twenty-eighth  day 
of  October,  in  the  year  of  our  Lord  and  thenceforth  during 
all  the  days  and  times  in  this  count  aforesaid,  it  became  and  was 
the  duty  of  the  said  P.  B.  D.  to  furnish,  provide,  and  supply  the 
said  J.  A.  with  good  and  wholesome  food,  meat,  and  drink,  in 
such  sufficient  quantities  as  should  be  necessary  for  the  healthy 
support,  nourishment,  and  sustenance  of  the  body  of  the  said  J. 
A. ;  and  also  to  furnish,  provide,  and  supply  the  said  J.  A.  with 
such  proper,  suitable,  and  wholesome  lodging,  shelter,  and  abode, 
as  should,  upon  and  during  all  the  several  days  and  times  afore- 
said, be  needful  for  the  said  J.  A.,  and  be  necessary  to  preserve  him 
in  a  good  and  sound  state  of  bodily  health,  and  free  from  sickness, 
weakness,  and  disorder;  and  also  during  all  the  days  and  times 
aforesaid,  to  furnish,  provide,  and  supply  the  said  J.  A.  with  such 
healthy,  wholesome,  and  proper  bedding  and  sleeping  accommo- 
136 


HOMICIDE.  "  (166) 

dation  as  should  be  necessary  to  enable  the  said  J.  A.  to  enjoy  a 
due  and  proper  quantity  of  wholesome,  healthy,  and  refreshing 
rest  and  sleep ;  and  also  to  furnish,  provide,  and  supply  the  said 
J.  A.  with  a  suflicient  quantity  of  warm  and  wholesome  cloth- 
ing, for  the  protection  of  the  body  of  the  said  J.  A.  from  the 
cold,  ^damp,  and  inclemency  of  the  weather ;  all  of  which  said 
several  premises  the  said  P.  B.  D.,  upon  and  dm^ing  all  the  sev- 
eral days  and  times  in' this  count  mentioned,  well  knew.  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  P.  B.  D.,  on  the  several  days  aforesaid,  with  force 
and  arms,  at  the  parish  of  Tooting  aforesaid,  and  within  the 
jurisdiction  of  the  said  Central  Criminal  Court,  in  and  upon  the 
said  J.  A.,  feloniously  did  make  divers  assaults ;  and  that  the 
said  P.  B.  D.,  not  regarding  his  duty  as  aforesaid,  upon  all  and 
every  the  days  aforesaid,  and  during  all  the  said  times,  whilst 
the  said  J.  A.  remained  and  continued  under  the  care,  charge, 
dominion,  government,  custody,  and  control  of  the  said  P.  B.  D. 
in  the  said  asylum,  at  the  parish  of  Tooting  aforesaid,  and  with- 
in the  jurisdiction  of  the  said  Central  Criminal  Court,  feloniously 
did  omit,  neglect,  and  refuse  to  furnish,  provide,  or  supply  the 
said  J.  A.  with  good  and  wholesome  food,  meat,  and  drink,  in 
such  sufficient  quantities  as  were  upon  and  during  all  and  every 
of  those  days  respectively,  and  during  all  the  time  aforesaid, 
necessary  for  the  healthy  support,  nourishment,  and  sustenance 
of  the  body  of  the  said  J.  A.,  according  to  the  duty  of  the  said 
P.  B.  D.  in  that  behalf,  and  on  the  contrary  thereof,  upon  and 
during 'all  and  every  the  days  aforesaid,  and  during  all  the  time 
aforesaid,  at  the  parish  of  Tooting  aforesaid,  and  within  the 
jurisdiction  of  the  said  Central  Criminal  Court,  feloniously,  and 
without  any  lawful  excuse  whatsoever,  did  furnish,  provide,  and 
supply  the  said  J.  A.  with  food,  meat,  and  drink  in  very  in- 
sufficient and  inadequate  quantities,  and  in  no  sufficient  and 
adequate  quantity  or  quantities  whatsoever,  for  such  support, 
nourishment,  and  sustenance  of  the  body  of  the  said  J.  A.  as 
aforesaid  ;  and  that  the  said  P.  B.  D.,  not  regarding  his  duty  as 
aforesaid,  upon  and  during  all  and  every  of  the  days  aforesaid, 
and  during  all  the  said  time  whilst  the  said  J.  A.  remained  and 
continued  under  such  charge,  care,  dominion,  government,  cus- 
tody, and  control  as  aforesaid,  in  the  said  asylum,  at  the  parish  of 

137 


(166)  OFFENCES    AGAINST   THE    PERSON. 

Tooting  aforesaid,  and  within  the  jurisdiction  of  the  said  Cen- 
tral Criminal  Court,  feloniously  did  omit,  neglect,  and  refuse  to 
furnirfh,  provide,  or  supply  the  said  J.  A.  with  such  proper,  suit- 
able, and  wholesome  lodging,  shelter,  and  abode  as  was,  upon 
and  during  all  the  several  days  aforesaid,  and  during  all  the  time 
aforesaid,  needful  for  the  said  J.  A.,  and  necessary  to  preserve 
him  in  a  good  and  sound  state  of  bodily  health,  and  free  from 
sickness,  weakness,  and  disorder,  and  as,  according  to  the  said 
duty  of  the  said  P.  B.  D.,  he  ought  to  have  done,  and  on  the 
contrary  thereof,  the  said  P.  B.  D.,  at  the  parish  of  Tooting  afore- 
said, and  within  the  jurisdiction  of  the  said  Central  Criminal 
Court,  upon  and  during  all  the  several  days  aforesaid,  and  during 
all  the  time  aforesaid,  knowingly,  feloniously,  and  contrary  to 
his  duty  in  that  behalf,  did  keep  the  said  J.  A.,  and  force,  compel, 
and  oblige  the  said  J.  A.  to  be  and  remain  in  divers  ill-ventilated 
and  unwholesome  rooms,  inhabited  by  and  overcrowded  with  an 
excessive  and  injurious  number  of  other  persons  in  the  said 
asylum,  and  feloniously  did  expose  the  said  J.  A.,  and  force  and 
compel  the  said  J.  A.  to  be  and  remain  exposed  for  divers  long 
spaces  of  time,  on  each  of  the  days  aforesaid,  to  divers  fetid, 
injurious,  noxious,  unwholesome,  and  pestilential  exhalations 
and  vapors  in,  near  to,  around,  and  about  the  said  asylum  then 
arising  and  existing ;  and  that  the  said  P.  B.  D.,  not  regarding 
his  duty  as  aforesaid,  upon  and  during  all  and  every  the  days 
, aforesaid,  and  during  all  the  said  time  whilst  the  said  J.  A.  re- 
mained and  continued  under  such  charge,  care,  dominion,  gov- 
ernment, custody,  and  control  as  aforesaid,  in  the  said  asylum, 
at  the  parish  of  Tooting  aforesaid,  and  within  the  jurisdiction  of 
the  said  Central  Criminal  Court,  feloniously  did  omit,  neglect, 
and  refuse  to  furnish,  provide,  and  supply  the  said  J.  A.  with 
such  healthy,  wholesome,  and  proper  bedding  and  sleeping  ac- 
commodation as  was  necessary  to  enable  the  said  J.  A.  on  all 
and  every  the  said  several  days  aforesaid,  to  enjoy  a  due  quantity 
of  wholesome,  healthy,  and  refreshing  rest  and  sleep,  and  as,  ac- 
cording to  the  duty  of  the  said  P.  B.  D.,  he  ought  to  have  done, 
and  on  the  contrary  thereof,  upon  divers  nights  during  all  the 
time  aforesaid,  at  the  parish  of  Tooting  aforesaid,  and  within  the 
jurisdiction  of  the  said  Central  Criminal  Court,  feloniously  and 
knowingly  did  force,  oblige,  and  compel  the  said  J.  A.  to  lie  and 
138 


HOMICIDE.  (166) 

be  in  a  certain  ill-ventilated  and  unwholesome  room,  then  over- 
crowded with  an  excessive  and  injurious  number  of  other  per- 
sons in  the  said  asylum,  and  to  be  and  remain,  for  divers  long 
spaces  of  time  on  each  of  the  nights  aforesaid,  in  divers  fetid, 
injurious,  noxious,  unwholesome,  and  pestilential  vapors  and 
exhalations  in  the  said  room  arising  and  existing,  and  also  to  lie 
and  be  in  a  certain  small  bed  in  the  said  room,  together  with  two 
other  persons,  to  wit,  Joseph  Andrews  and  William  Derbyshire, 
whereby  the  said  bed  became  and  was,  on  all  and  every  of  the 
said  nights,  rendered  unwholesome  and  injurious  to  the  said  J. 
A.,  and  totally  unfit  for  and  incapable  of  affording  to  the  said 
J.  A.  such  wholesome,  healthy,  and  refreshing  sleep  as  aforesaid ; 
and  that  the  said  P.  B.  D.,  not  regarding  his  duty  as  aforesaid, 
upon  and  during  all  and  every  the  days  aforesaid,  and  during  all 
the  said  time  whilst  the  said  J.  A.  remained  and  continued  under 
such  charge,  care,  dominion,  government,  custody,  and  control 
as  aforesaid,  in  the  said  asylum,  at  the  parish  of  Tooting  afore- 
said, and  within  the  jurisdiction  of  the  said  court,  feloniously 
did  omit,  neglect,  and  refuse  to  furnish,  provide,  or  supply  the 
said  J.  A.  with  any  sufficient  quantity  of  warm  and  wholesome 
clothing,  or  with  a  sufficient  quantity  of  any  clothing  whatever 
for  the  protection  of  the  body  of  the  said  J.  A.  from  the  cold, 
damp,  and  inclemency  of  the  weather,  and  as,  according  to  the 
duty  of  the  said  P.  B.  D.,  he  ought  to  have  done,  and  on  the 
contrary  thereof,  during  divers  cold,  wet,  and  inclement  days 
during  the  time  aforesaid,  at  the  parish  aforesaid,  and  within  the 
jurisdiction  of  the  said  Central  Criminal  Court,  feloniously,  and 
contrary  to  his  duty  in  that  behalf,  left  the  said  J.  A.  exposed, 
and  then  and  there  suffered  and  permitted  the  said  J.  A.  to  re- 
main exposed,  for  divers  long  spaces  of  time,  to  the  cold,  damp, 
and  inclemency  of  the  weather,  &c.,  without  any  sufficient  or 
adequate  quantity  of  clothing  or  covering  for  his  body,  and  with 
a  totally  inadequate  and  insufficient  quantity  of  clothing  and 
covering  for  the  body  of  the  said  J.  A.,  to  protect  him  from  the 
severity  and  inclemency  of  the  weather.  By  reason  and  means 
of  which  said  several  felonious  acts,  defaults,  and  omissions  of 
the  said  P.  B.  D.  hereinbefore  alleged,  the  said  J.  A.  afterwards, 
on  the  said  fifth  day  of  January,  in  the  year  of  our  Lord  at 

the  parish  of  Tooting  aforesaid,  and  within  the  jurisdiction  of 

139 


(166)  OFFENCES    AGAINST   THE    PERSON. 

the  said  court,  became  and  was,  and  the  said  P.  B.  D.  did  thereby 
then  and  there  feloniously  cause  and  occasion  the  said  J.  A.  to 
become  and  be  mortally  sick,  weak,  diseased,  disordered,  and 
distempered  in  his  body.  Of  which  said  mortal  sickness,  weak- 
ness, disease,  disorder,  and  distemper,  the  said  J.  A.,  on  and 
from  the  said  last  mentioned  day  in  the  year  of  our  Lord 
until  the  sixth  day  of  January  in  the  same  year,  as  well  at  the 
parish  aforesaid  and  within  the  jurisdiction  of  the  said  court,  as 
at  the  parish  of  Saint  Pancras,  in  the  county  of  Middlesex,  and 
within  the  jurisdiction  of  the  said  court,  did  languish,  and  lan- 
guishing did  live,  and  then  on  the  said  last  mentioned  day,  at 
the  parish  last  aforesaid,  in  the  county  last  aforesaid,  and  within 
the  jurisdiction  of  the  said  court,  of  the  mortal  sickness,  weak- 
ness, disease,  disorder,  and  distemper  aforesaid,  did  die.  .  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  P.  B.  D.,  the  said  J.  A.,  in  manner  and  form  aforesaid,  felo- 
niously did  kill  and  slay,  against  the  peace,  &c. 

Second  count. 

(^Tlie  same  as  the  first,  except  that  it  charged  acts  of  omission 

only.') 

Third  count. 

(^The  same  as  the  first,  charging  acts  of  commission  only.) 

Fourth  count. 
The  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  heretofore  and  during  all  the  days  and  times  hereinafter 
in  this  count  mentioned,  J.  A.,  hereinafter  in  this  count  mentioned, 
was  a  poor,  indigent,  and  destitute  infant  child  of  a  tender  age, 
to  wit,  of  the  age  of  six  years,  and  unable  to  provide  himself 
with  necessary  food,  shelter,  or  clothing,  or  any  of  the  necessaries 
of  life,  and  that  heretofore,  to  wit,  on  the  said  twenty-eighth  day 
of  October,  in  the  year  of  our  Lord  the  said  P.  B.  D., 

being  the  keeper  of  the  said  asylum,  in  the  first  count  of  this 
indictment  mentioned,  to  wit,  at  the  parish  of  Tooting  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  voluntarily  received 
the  said  J.  A.  into  the  charge  and  custody  of  the  said  P.  B.  D., 
and  the  said  P.  B.  D.  thenceforth  and  on  and  from  the  said 
twenty-eighth  day  of  October,  and  upon  and  during  all  the  days 
140 


HOMICIDE.  (166) 

and  times  between  that  day  and  the  fifth  day  of  January,  in  the 
year  of  our  Lord  kept  and   detained  the  said  J.  A.,  and 

the  said  J.  A.  continued,  remained,  and  was  under  the  care, 
charge,  dominion,  government,  custody,  and  control  of  the  said 
P.  B.  D.,  in  the  said  asylum,  to  wit,  at  the  parish  of  Tooting 
aforesaid,  and  within  the  jurisdiction  of  the  said  Central  Crim- 
inal Court;  and  the  said  J.  A.  was,  during  all  the  several  days  and 
times  in  this  count  aforesaid,  wholly  subject  to  and  dependent 
upon  the  said  P.  B.  D.  lor  abode,  shelter,  lodging,  sleeping  accom- 
modation, meat,  drink,  food,  and  clothing,  and  was  unable  to  ob- 
tain the  same,  or  any  of  them,  from  any  other  source  or  from  any 
other  person  or  persons  whomsoever.  And  the  jurors  aforesaid  do 
further  present,  that  the  said  P.  B.  D.,  on  the  several  days,  in  this 
count  aforesaid,  at  the  parish  of  Tooting  aforesaid,  and  within  the 
jurisdiction  of  the  said  Central  Criminal  Court,  in  and  upon  the 
said  J.  A.,  feloniously  did  make  divers  assaults,  and  that  the  said 
P.  B.  D.,  upon  and  during  all  and  every  the  days  in  this  count 
aforesaid,  and  during  all  the  said  time  whilst  the  said  J.  A.  re- 
mained and  continued  under  the  care,  charge,  dominion,  gov- 
ernment, custody,  and  control  of  the  said  P.  B.  D.,  in  the  said 
asylum,  as  in  this  count  mentioned,  at  the  parish  of  Tooting 
aforesaid,  and  within  the  jurisdiction  of  the  said  Central  Crim- 
inal Court,  feloniously  did  omit,  neglect,  and  refuse  to  furnish, 
provide,  or  supply  the  said  J.  A.  with  meat  and  drink  in  sufficient 
quantities  for  the  support,  nourishment,  and  sustenance  of  the 
body  of  the  said  J.  A.,  according  to  the  duty  of  the  said  P.  B. 
D.,  in  that  behalf;  but  on  the  contrary  thereof,  upon  and  during 
all  and  every  the  days  in  this  count  aforesaid,  and  during  all  the 
time  in  this  count  aforesaid,  at  the  parish  of  Tooting  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  feloniously  and 
without  any  lawful  excuse  whatsoever,  did  furnish,  provide,  and 
supply  the  said  J.  A.  with  food,  meat,  and  drink  in  very  insuffi- 
cient and  inadequate  quantities,  and  in  no  sufficient  and  ade- 
quate quantity  whatsoever  for  such  support,  nourishment,  and 
sustenance  of  the  body  of  the  said  J.  A.,  as  in  this  count  afore- 
said, and  that  the  said  P.  B.  D.,  upon  and  during  all  and  every 
the  days  in  this  count  aforesaid,  and  during  all  the  said  time 
whilst  the  said  J.  A.  remained  and  continued  under  such  charge, 
care,  dominion,  government,  custody,  and  control,  as  in  this  count 

141 


(166)  OFFENCES    AGAINST  THE   PERSON. 

aforesaid,  in  the  said  asylum,  at  the  parish  of  Tooting  aforesaid, 
and  within  the  jurisdiction  of  the  said  Central  Criminal  Court, 
feloniously  did  omit,  neglect,  and  refuse  to  famish,  provide,  or 
supply  the  said  J.  A.  with  such  proper  and  suitable  lodging, 
shelter,  and  abode,  as  was,  upon  all  and  every  the  days  in  this 
count  aforesaid,  and  during  all  the  said  last  mentioned  time, 
needful  for  the  said  J.  A.  and  necessary  to  preserve  him  in  a 
good  state  of  bodily  health,  according  to  his  duty  in  that  behalf, 
but  on  the  contrary  thereof,  the  said  P.  B.  D.,  upon  all  the  sev- 
eral days  and  times  in  this  count  aforesaid,  at  the  parish  of  Toot- 
ing aforesaid,  and  within  the  jurisdiction  of  the  said  Central 
Criminal  Court,  knowingly  and  feloniously  did  force,  compel, 
and  oblige  the  said  J.  A.  to  be  and  remain  for  divers  long  spaces 
of  time,  in  divers  ill-ventilated  and  unwholesome  rooms  and 
apartments,  then  overcrowded  with  an  excessive  and  injurious 
number  of  other  persons  in  the  said  asylum,  and  feloniously  did 
expose  the  said  J.  A.,  and  force,  oblige,  and  compel  the  said  J. 
A.  to  be  and  remain  exposed  for  divers  long  spaces  of  time  to 
divers  fetid,  injurious,  noxious,  unwholesome,  and  pestilential 
vapors  and  exhalations  in,  near  to,  around,  and  about  the  said 
asylum,  then  arising  and  existing;  and  that  the  said  P.  B.  D., 
upon  and  during  all  and  every  the  days  in  this  count  aforesaid, 
during  all  the  time  whilst  the  said  J.  A.  remained  and  continued 
under  such  charge,  care,  dominion,  government,  custody,  and 
control  of  the  said  P.  B.  D.,  as  in  this  count  aforesaid,  at  the 
parish  of  Tooting  aforesaid,  and  within  the  jurisdiction  of  the 
said  Central  Criminal  Court,  feloniously  did  omit,  neglect,  and 
refuse  to  furnish,  provide,  or  supply  the  said  J.  A.  with  such  bed- 
ding and  sleeping  accommodation  as  was  necessary  to  enable 
the  said  J.  A.,  on  all  and  every  the  several  days  in  this  count 
aforesaid,  to  enjoy  a  due  quantity  of  wholesome,  healthy,  and 
refreshing  rest  and  sleep,  according  to  the  duty  of  the  said  P.  B. 
D.  in  that  behalf;  but  on  the  contrary  thereof,  upon  divers  nights 
during  the  time  in  this  count  aforesaid,  at  the  parish  of  Tooting 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  feloniously 
and  knowingly  did  force,  oblige,  and  compel  the  said  J.  A.  to  lie 
and  be  in  a  certain  ill-ventilated  and  unwholesome  room,  then 
overcrowded  with  an  excessive  and  injurious  number  of  other 
persons,  and  to  be  and  remain  for  divers  long  spaces  of  time  in 
142 


HOMICIDE.  (16<5) 

divers  fetid,  injurious,  noxious,  unwholesome,  and  pestilential 
vapors  and  exhalations  in  the  said  room  then  arising  and  exist- 
ing, and  also  to  lie  and  be  in  a  certain  small  bed  in  the  said 
room,  together  with  two  other  persons,  to  wit,  J.  A.  and  W.  D., 
whereby  the  said  bed  became  and  was  oii  all  and  every  of  the 
said  nights  totally  unfit  for  and  incapable  of  affording  the  said 
J.  A.  any  wholesome,  healthy,  or  refreshing  sleep  whatsoever, 
and  that  the  said  P.  B.  D.,  not  regarding  his  dnty  in  that  behalf, 
upon  all  and  every  the  days  in  this  count  aforesaid,  and  during 
all  the  said  time  whilst  the  said  J.  A.  remained  and  continued 
under  such  charge,  care,  dominion,  government,  custody,  and  con- 
trol, as  in  this  count  aforesaid,  at  the  parish  of  Tooting  aforesaid, 
and  within  the  jurisdiction  of  the  said  Central  Criminal  Court, 
feloniously  did  omit,  neglect,  and  refuse  to  furnish,  provide,  or 
supply  the  said  J.  A.  with  a  sufficient  quantity  of  any  clothing 
or  covering  whatsoever,  for  the  protection  of  the  body  of  the  said 
J.  A.  from  the  cold,  damp,  and  inclemency  of  the  weather,  ac- 
cording to  the  duty  of  the  said  P.  B.  D.  in  that  behalf,  but  on 
the  contrary  thereof,  during  divers  of  the  said  days,  in  this  count 
before  mentioned,  which  were  damp,  cold,  and  inclement,  at  the 
parish  of  Tooting  aforesaid,  and  within  the  jurisdiction  of  the 
said  court,  feloniously  and  contrary  to  his  duty  in  that  behalf, 
left  the  said  J.  A.  exposed,  and  then  and  there  suffered  and  per- 
mitted the  said  J.  A.  to  be  and  remain  exposed  for  divers  long 
spaces  of  time  without  any  sufficient  or  adequate  quantity  of 
clothing  or  covering  for  his  body,  but  with  a  totally  inadequate 
and  insufficient  quantity  of  clothing  and  covering  for  the  body 
of  the  said  J.  A.,  to  protect  him  from  the  severity  and  inclemency 
of  the  weather,  by  reason  and  means  of  which  said  several  feloni- 
ous acts,  defaults,  and  omissions  of  the  said  P.  B.  D.  in  this  count 
before  alleged,  the  said  J.  A.  afterwards,  to  wit,  on  the  fifth  day 
of  January,  in  the  year  of  our  Lord  at  the  parish  of  Toot- 

ing aforesaid,  in  the  County  of  Surrey  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  became  and  was,  and  the  said. P. 
'B.  D.  did  thereby  then  and  there  feloniously  cause  and  occasion 
the  said  J.  A.  to  become  and  be  mortally  sick,  weak,  diseased, 
disordered,  and  distempered  in  his  body.  Of  which  said  last 
mentioned  mortal  sickness,  weakness,  disease,  disorder,  and  dis- 
temper, the  said  J.  A.,  on  and  from  the  said  last  mentioned  day 

143 


(166)  OFFENCES    AGAINST   THE   PERSON. 

until  the  sixth  day  of  January,  in  the  year  of  our  Lord 
as  well  at  the  parish  of  Tooting  aforesaid,  and  within  the  juriaj 
diction  of  the  said  court,  as  at  the  parish  of  Saint  Pancras,  in 
the  County  of  Middlesex  and  within  the  jurisdiction  of  the  said 
Central  Criminal  Court,  did  languish,  and  languishing  did  live, 
and  then  on  the  said  last  mentioned  day,  in  the  year  of  our  Lord 
aforesaid,  at  the  parish  last  aforesaid,  in  the  County  of 
Middlesex  aforesaid,  and  within  the  jurisdiction  of  the  said  Cen- 
tral Criminal  Court,  of  the  said  last  mentioned  mortal  sickness, 
weakness,  disease,  disorder,  and  distemper,  did  die ;  and  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  that  the  said 
P.  B.  D.,  the  said  J.  A.,  in  manner  and  form  in  this  count  men- 
tioned, feloniously  did  kill  and  slay  against  the  peace,  &c. 

Fifth  count. 
(^Same  as  the  fourth,  except  that  it  charged  acts  of  omission  only.') 

Sixth  count. 
(^Same  as  the  fourth,  but  charging  acts  of  commission  only.) 

Seventh  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  heretofore,  to  wit,  on  all  the  days  and  times  herein- 
after in  this  count  mentioned,  J.  A.,  hereinafter  in  this  count  men- 
tioned, was  a  poor,  indigent,  and  destitute  infant  child,  of  very 
tender  age,  to  wit,  of  the  age  of  six  years,  and  was  totally  un- 
able to  provide  for  or  take  care  of  himself,  and  during  all  the 
days  and  times  in  this  count  mentioned  was  in  a  sick,  feeble, 
and  disordered  state  of  health,  and  required,  for  the  purpose  of 
enabling  him  to  recover  bodily  health  and  strength,  to  be  kept  in 
a  pure  and  healthy  atmosphere,  and  some  airy  and  well  venti- 
lated place  or  places.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  on  and  from  the  second  day  of 
January,  in  the  year  of  our  Lord  until  the  fifth  day  of  the 

same  month,  the  said  J.  A.  was  in  and  under  the  care,  charge, 
dominion,  government,  control,  and  keeping  of  the  said  P.  B.  D., 
in  the  said  asylum  in  the  first  count  of  this  indictment  mentioned, 
for  reward  to  the  said  P.  B.  D.  in  that  behalf,  and  that  during  all 
the  time  the  said  J.  A.  remained  under  such  charge,  care,  domin- 
144 


HOMICIDE.  (l^*j) 

ion,  government,  custody,  and  control,  as  in  this  count  aforesaid, 
it  was  the  duty  of  the  said  P.  B.  D.  to  furnish  and  provide  the 
said  J.  A.  with  such  healthy  and  wholesome  slielter,  lodging,  and 
sleeping  accommodation  as  should  be  necessary  to  enable  the 
said  J.  A.  to  recover  his  bodily  health  and  strength.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  P.  B.  D.,  upon  the'said  second  day  of  January,  in 
the  year  of  our  Lord  at  the  parish  of  Tooting  aforesaid, 

and  within  the  jurisdiction  of  the  said  court,  in  and  upon  the 
said  J.  A.  feloniously  did  make  an  assault;  and  the  said  P.  B. 
D.,  then  and  there,  and  upon  all  the  days  in  this  count  before 
mentioned,  and  during  all  the  time  whilst  the  said  J.  A.  was  so 
under  the  care,  charge,  dominion,  government,  control,  and  keep- 
ing of  the  said  P.  B.  D.,  as  in  this  count  aforesaid,  at  the  parish 
of  Tooting  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  feloniously,  and  contrary  to  his  duty  in  that  behalf,  did 
keep,  confine,  and  detain  the  said  J.  A.  in  divers  close,  confined, 
and  ill-ventilated  rooms  in  the  said  asylum,  and  which,  during 
all  the  time  last  aforesaid,  were  rendered  and  were  impure,  un- 
healthy, unwholesome,  and  unfit  for  the  said  J.  A.  to  inhabit,  by 
reason  of  their  being  overcrowded  with  a  large,  excessive,  and 
injurious  number  of  other  persons ;  and  also  during  divers 
nights,  during  the  time  last  aforesaid,  feloniously  did  force,  com- 
pel, and  oblige  the  said  J.  A.  to  lie,  remain,  and  be  in  a  certain 
close  and  confined  and  ill- ventilated  bedroom,  which  also  was  on 
all  the  said  nights  impure,  unwholesome,  and  unhealthy,  by  rea- 
son of  divers  impure,  injurious,  noxious,  and  pestilential  vapors 
and  exhalations  in  the  said  last  mentioned  bedroom,  then  arising. 

'  a' 

existing,  and  being;  by  reason  and  by  means  of  which  said  sev- 
eral felonious  acts  and  defaults  of  the  said  P.  B.  D.,  in  this  count 
mentioned,  the  said  J.  A.  afterwards,  to  wit,  on  the  fifth  day  of 
January,  in  the  year  of  our  Lord  at  the  parish  of  Tooting 

aforesaid,  in  the  County  of  Surrey  aforesaid,  and  within  the 
jurisdiction  of  the  said  Central  Criminal  Court,  became  and  was 
mortally  sick,  weak,  diseased,  disordered,  and  distempered  in  his 
body,  of  which  said  last  mentioned  mortal  sickness,  weakness, 
disease,  disorder,  and  distemper  the  said  J.  A.,  on  and  from  the 
day  last  aforesaid,  until  the  sixth  day  of  January,  in  the  same 
year,  as  well  at  the  parish  of  Tooting  aforesaid,  and  within  the 
VOL.  I. —  10  145 


(166)  OFFENCES   AGAINST   THE    PERSON. 

jurisdiction  of  the  said  Central  Criminal  Court,  as  at  the  parish 
of  Saint  Pancras,  in  the  County  of  Middlesex  aforesaid,  and 
within  the  jurisdiction  of  the  said  Central  Criminal  Court,  did  lan- 
guish, and  languishing  did  live,  and  then  on  the  said  sixth  day  of 
January,  in  the  year  of  our  Lord  at  the  parish  last  afore- 

said, and  within  the  jurisdiction  of  the  said  court,  of  the  said  last 
mentioned  mortal  sickness,  weakness,  disease,  disorder,  and  dis- 
temper, did  die.  And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  say,  that  the  said  P.  B.  D.  the  said  J.  A.,  in  manner 
and  form  in  this  count  aforesaid,  feloniously  did  kill  and  slay, 
against  the  peace,  &c. 

Eighth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  heretofore  and  at  the  time  of  committing  the  offence 
by  the  said  P.  B.  D.,  and  during  all  the  times  hereinafter  men- 
tioned, J.  A.,  hereinafter  in  this  count  mentioned,  was  a  poor, 
indigent,  and  destitute  child  of  a  tender  age,  to  wit,  of  the  age 
of  six  years,  and  totally  unable  to  support,  provide  for,  and  take 
care  of  himself;  and  the  said  P.  B.  D.,  at  his  request,  had  the 
care,  charge,  possession,  and  custody  of  the  said  J.  A.,  and  had 
undertaken  the  support  and  maintenance  of  the  said  J.  A.,  and 
the  finding  and  providing  the  said  J.  A.  with  reasonably  suffi- 
cient and  proper  victuals,  food,  drink,  board,  clothing,  and  lodg- 
ing, for  reward  to  the  said  P.  B.  D.  in  that  behalf,  to  wit,  within 
the  jurisdiction  of  the  said  Central  Criminal  Court.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  P.  B.  D.,  on  the  said  twenty-eighth  day  of  October, 
in  the  year  of  our  Lord  and  on  divers  days  and  times 

aforesaid,  to  wit,  and  before  the  death  of  the  said  J.  A.,  as  here- 
inafter mentioned,  at  the  parish  of  Tooting  aforesaid,  in  the 
County  of  Surrey  aforesaid,  and  within  the  jurisdiction  of  the 
said  court,  in  and  upon  the  said  J.  A.  feloniously  did  make  divers 
assaults,  and  knowingly,  wilfully,  and  feloniously  did  put,  place, 
keep,  and  lodge  the  said  J.  A.,  for  divers  long  spaces  of  time,  to 
wit,  for  and  during  the  whole  of  those  days  and  times,  in  divers 
rooms  and  apartments,  then  and  during  all  that  time  greatly  and 
excessively  overcrowded,  overcharged,  and  filled  to  excess  with 
divers  and  very  many  other  infants  and  persons,  and  then  also 
146 


HOMICIDE.  (166) 

being  in  an  ill-ventilated,  innpure,  foul,  unwholesome,  unhealthy 
state,  and  in  an  unfit  and  improper  state  for  the  said  J.  A.  to  be 
put,  placed,  kept,  and  lodged  in,  and  unfit  for  the  habitation  of 
man  ;  and  also  on  the  said  days  and  times,  at  the  place  aforesaid, 
within  the  jurisdiction  of  the  said  court,  wilfully  and  feloniously 
did  neglect,  omit,  anjcl  refuse  to  give  and  administer  to,  or  find 
and  provide  the  said  J.  A.  with,  and  to  suffer  and  permit  to  be 
given  and  administered  to,  or  found  and  provided  the  said  J.  A. 
with  reasonably  sufficient  and  proper  victuals,  food,  drink,  and 
clothing  necessary  for  the  sustenance,  support,  and  maintenance 
of  the  body  of  the  said  J.  A.,  by  means  of  which  said  placing, 
keeping,  putting,  and  lodging  the  said  J.  A.  in  the  said  rooms 
and  apartments,  and  also  by  means  of  which  said  neglecting, 
omitting,  and  refusing  to  give  and  administer  to,  or  find  and  pro- 
vide the  said  J.  A.  with  such  reasonably  sufficient  and  proper 
victuals,  food,  drink,  and  clothing  as  were  necessary  for  the  sus- 
tenance, support,  and  maintenance  of  the  body  of  the  said  J.  A., 
the  said  J.  A.  afterwards,  to  wit,  on  the  fifth  day  of  January,  in 
the  year  of  our  Lord  at  the  place  aforesaid,  in  the  county 

aforesaid,  and  within  the  jurisdiction  of  the  said  court,  became 
and  was  mortally  sick  and  ill,  weak,  diseased,  disordered,  and 
distempered  in  his  body,  and  of  which  said  last  named  mortal 
sickness,  illness,  weakness,  disease,  disorder,  and  distemper  the 
said  J.  A.,  on  and  from  the  day  and  year  last  aforesaid,  until,  to 
wit,  the  sixth  day  of  January,  in  the  year  of  our  Lord  as 

well  at  the  parish  of  Tooting  aforesaid,  and  within  the  jurisdic- 
tion of  the  said  court,  as  at  the  parish  of  Saint  Pancras,  in  the 
County  of  Middlesex,  and  within  the  jurisdiction  of  the  said 
court,  did  languish,  and  languishing  did  live,  and  then,  to  wit, 
on  the  day  and  year  last  aforesaid,  at  the  parish  last  aforesaid,  in 
the  county  last  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  of  the  said  last  named  mortal  sickness,  illness,  weakness, 
disease,  disorder,  and  distemper,  did  die.  And  so  the  jurors 
aforesaid,  on  their  oath  aforesaid,  do  say,  that  the  said  P.  B.  D. 
the  said  J.  A.,  in  manner  and  form  in  this  count  aforesaid,  felo- 
niously did  kill  and  slay,  against  the  peace,  6cc. 

Ninth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 

147 


(166)  OFFENCES   AGAINST   THE   PERSON. 

present,  that  before  and  at  the  time  of  the  committing  of  the 
offence  by  the  said  P.  B.  D.,  and  during  all  the  times  hereinafter 
mentioned,  J.  A.,  hereinafter  in  this  count  mentioned,  was  a  poor, 
indigent,  and  destitute  child  of  a  tender  age,  to  wit,  of  the  age  of 
six  years,  and  wholly  unable  to  support,  provide  for,  and  take  care 
of  himself;  and  the  said  P.  B.  D.,  at  his  request,  had  the  care, 
charge,  possession,  and  custody  of  the  said  J.  A.,  and  had  under- 
taken the  support  and  maintenance  of  the  said  J.  A.,  and  the  find- 
ing and  providing  the  said  J.  A.  with  reasonably  sufficient  and 
proper  board  and  lodging,  for  reward  to  the  said  P.  B.  D.  in  that 
behalf,  to  wit,  within  the  jurisdiction  of  the  said  Central  Criminal 
Court.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  P.  B.  D.,  on  the  said  twenty-eighth 
day  of  October,  in  the  year  of  our  Lord  and  on  divers  days 

and  times  afterwards,  and  before  the  death  of  the  said  J.  A.,  as 
hereinafter  mentioned,  at  the  parish  of  Tooting  aforesaid,  in  the 
County  of  Surrey  aforesaid,  and  within  the  jurisdiction  of  the 
said  court,  in  and  upon  the  said  J.  A.  feloniously  did  make  divers 
assaults,  and  know^ingly,  wilfully,  and  feloniously  did  put,  place, 
keep,  and  lodge  the  said  J.  A.,  for  divers  long  spaces  of  time,  to 
wit,  for  and  during  the  whole  of  those  days  and  times,  in  divers 
rooms  and  apartments,  then  and  during  all  that  time  greatly  and 
excessively  overcrowded,  overcharged,  and  filled  to  excess  with 
divers  and  very  many  other  infants  and  persons,  and  then  also 
being  in  an  ill-ventilated,  impure,  foul,  unwholesome,  and  un- 
healthy state,  and  in  an  unfit  and  improper  state  for  the  said  J.  A. 
to  be  put,  placed,  kept,  and  lodged  in  ;  by  means  of  which  said 
putting,  placing,  keeping,  and  lodging  the  said  J.  A.  in  the  said 
rooms  and  apartments,  the  said  J.  A.  afterwards,  to  wit,  on  the 
fifth  day  of  January,  in  the  year  of  our  Lord  at  the  parish 

aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdiction  of 
the  said  court,  became  and  was  mortally  sick  and  ill,  weak,  dis- 
eased, disordered,  and  distempered  in  his  body,  and  of  which  said 
last  mentioned  sickness,  illness,  weakness,  disease,  disorder,  and 
distemper  the  said  J.  A.,  on  and  from  the  day  and  year  last  afore- 
said, until,  to  wit,  on  the  sixth  day  of  January,  in  the  year  of  our 
Lord  as  well  at  the  parish  of  Tooting  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  as  at  the  parish  of  Saint  Pancras,  in 
the  County  of  Middlesex,  and  within  the  jurisdiction  of  the  said 
148 


HOMICIDE.  (167) 

court,  did  languish,  and  languishing  did  live,  and  then,  to  wit,  on 
the  day  and  year  last  aforesaid,  at  the  parish  last  aforesaid,  in  the 
county  last  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
of  the  said  last  mentioned  mortal  sickness,  illness,  weakness,  dis- 
ease, disorder,  and  distemper,  did  die.  And  so  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say,  that  the  said  P.  B.  D.  the 
said  J.  A.,  in  manner  and  form  in  this  count  aforesaid,  felo- 
niously did  kill  and  slay,  against  the  peace,  &c. 

(1G7)  Manslaughter  hy  striking  with  a  stone.(Jc) 

That  T,  on,  &c.,  at,  &c.  {commencing^  as  usual),  at  G.,  in  the 
County  of  M.  aforesaid,  in  and  upon  one  J.  L.,  in  the  peace  of 
said  commonwealth,  then  and  there  being,  feloniously  and  wil- 
fully did  make  an  assault,  and  that  he  the  said  T.  a  certain 
stone,  which  he  the  said  T.  in  his  right  hand  then  and  there  had 
and  held,  in  and  upon  the  left  side  of  the  head  of  him  the  said 
J.  L.,  then  and  there  feloniously  and  wilfully  did  cast  and  throw, 
and  that  the  said  T.,  with  the  stone  aforesaid,  so  as  aforesaid 
cast  and  thrown,'  the  aforesaid  J.  L.,  in  and  upon  the  left  side  of 
the  head  of  him  the  said  J.  L.,  then  and  there  feloniously  and 
wilfully  did  strike,  penetrate,  and  wound,  giving  to  the  said  J.  L., 
by  the  casting  and  throwing  of  the  stone  aforesaid,  in  and  upon 
the  left  side  of  the  head  of  him  the  said  J.  L.,  one  mortal  wound, 
of  the  length  of  one  inch,  and  of  the  breadth  of  half  an  inch,  of 
which  said  mortal  wound  he  the  said  J.  L.,  from  the  said  twenty- 
fifth  day  of  September,  in  the  year  aforesaid,  to  the  twenty-sixth 
day  of  the  same  September,  at  G.  aforesaid,  in  the  county  afore- 
said, did  languish,  and  languishing  did  live  ;  on  which  twenty- 
sixth  day  of  the  same  September,  at  G.  aforesaid,  the  said  J.  L., 
of  the  mortal  wound  aforesaid,  died  ;  and  so  the  said  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say,  that  the  said  T.  him  the 
said  J.  L.,  in  manner  and  form  aforesaid,  feloniously  and  wilfully 
did  kill  and  slay,  against  the  peace  of  said  commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 

(Jc)  Under  this  fornrit  was  held,  that  it  was  sufficiently  averred  that  T.  gave 
L.  a  mortal  wound  on  the  25th  of  September,  at  G.     Turns  v.  Com.,  6  Met.  225. 

149 


(168)  OFFENCES  AGAINST  THE  PERSON. 

(168)  Manslaughter.  By  giving  to  the  deceased  large  quantities  of 
spiriUious  liquors^  of  which  he  died. (I) 
That  J.  R.  P.,  J.  P.,  and  A.  K.,  &c.,  on  the  fifth  of  November, 
at,  &c.,  did  give,  administer,  and  deliver  to  one  M.  A.  divers  large 
and  excessive  quantities  of  spirituous  liquors  mixed  with  water, 
and  also  divers  large  and  excessive  quantities  of  wine  and  porter, 
to  witj  one  pint  of  brandy  mixed  with  water,  one  pint  of  rum 
mixed  with  water,  one  pint  of  gin  mixed  with  water,  two  quarts 
of  wine  called  port  wine,  and  one  quart  of  porter,  and  then  and 
there,  unlawfully  and  feloniously,  did  induce,  procure,  and  per- 
suade the  said  M.  A.  to  take,  drink  and  swallow  down  into  his 
body  the  said  quantities  of  spirituous  liquors  mixed  with  water, 
and  of  wine  and  porter,  the  said  quantities,  &c.,  being  then  and 
there,  when  taken,  drunk,  and  swallowed  by  the  said  M.  A., 
likely  to  cause  and  procure  his  death,  and  which  they  the  said  J. 
R.  P.,  J.  P.,  and  A.  K.,  then  and  there  well  knew;  and  that  the 
said  M.  A.  did  then  and  there,  by  means  of  the  said  inducement, 
procurement,  and  persuasion,  &c.,  take,  drink,  and  swallow  down 
into  his  body  the  said  large  quantities,  &c.,  so  given,  &c.,  unto 
him  as  aforesaid,  by  means  whereof  the  said  M.  A.,  then  and 
there,  became  and  was  greatly  drunk  and  intoxicated,  sick,  and 
greatly  distempered  in  his  body;  and  while  he  the  said  M.  A. 
was  so  drunk,  &c.,  as  aforesaid,  they  the  said  J.  U.  P.,  J.  P.,  and 
A.  K.  did  then  and  there,  to  wit,  on,  &c.,  at,  &c.,  make  an  as- 
sault on  him  the  said  M.  A.,  and  then  and  there  unlawfully  and 
feloniously  forced  and  compelled  him  to  go,  and  put,  placed,  and 
confined  him  in  a  certain  carriage,  to  v^it,  a  cabriolet,  and  then 
and  there  drove  and  carried  him  about  therein  for  a  long  time,  to 
wit,  for  two  hours  then  next  following,  and  therein  and  thereby, 
then  and  there,  greatly  shook,  threw,  pulled,  and  knocked  about 
the  said  M.  A.,  by  means  whereof  the  said  M.  A.,  then  and  there, 
also  became  mortally  sick  and  greatly  distempered  in  his  body; 
of  which  said  large  and  excessive  quantities  of  the  said  spiritu- 
ous liquors,  &c.,  so  by  him  the  said  M.  A.,  taken,  &c.,  as  afore- 
said, and  of  the  said  drunkenness,  &c.,  occasioned  thereby,  and 
of  the  said  shaking,  &c.,  and  of  the  said  sickness  and  distemper 

(0  R.  V.  Packard,  1  C.  &  M.  133.     The  defendants  were  found  guilty  before 
Mr.  Baron  Parke. 

150 


HOMICIDE.  (I'i^O) 

occasioned  thereby,  he  the  said  M.  A.,  then  and  there  instantly 
died.  ( Conclude  ivilh  an  allegation  in  the  usual  form,  viz.)  : 
that  the  said  J.  R.  P.,  .J.  P.,  and  A.  K.,  the  said  M.  A.,  in  man- 
ner and  form  aforesaid,  unlawfully  and  feloniously  did  kill  and 
slay,  &c. 

(169)  Against  driver  of  a  cart  for  driving  over  deceased. 

That  A.  B.,  of,  &c.,  on  with   force  and  arms,  at  in 

the  county  aforesaid,  in  the  public  highway  there,  in  and  upon 
one  C.  D.,  in  the  peace  of  the  said  commonwealth,  then  and 
there  being,  feloniously  and  wilfully  did  make  an  assault,  and  a 
certain  cart  of  the  value  of  ten  dollars,  then  and  there  drawn  by 
two  horses,  which  he  the  said  A.  B.  was  then  and  there  driving 
in  and  along  the  highway  aforesaid,  in,  upon,  and  against  the 
said  C.  D.,  feloniously  and  wilfully,  did  then  and  there  force  and 
drive;  and  him  the  said  C.  D.  did  thereby,  then  and  there,  throw 
to  and  upon  the  ground,  and  did  then  and  there  feloniously  and 
wilfully  force  and  drive  one  of  the  wheels  of  the  said  cart  against, 
upon,  and  over  the  head  of  him  the  said  C.  D.,  then  lying  upon 
the  ground,  and  thereby  did  then  and  there  give  to  the  said  C. 
D.,  in  and  upon  the  head  of  him  the  said  C.  D.,  one  mortal  frac- 
ture and  contusion,  of  the  breadth  of  four  inches,  and  of  the  depth 
of  four  inches,  of  which  said  mortal  fracture  and  contusion,  the 
'Said  C.  D.  then  and  there  instantly  died  ;  and  so  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say,  that  the  said  A.  B.,  him 
the  said  C.  D.,  then  and  there,  in  manner  and  form  aforesaid, 
feloniously,  unlawfully,  and  wilfully,  did  kill  and  slay.(m)  {Con- 
clude as  in  book  1,  chapter  3.) 

(170)  Manslaughter.     Against  a  husband  for  neglecting  to  provide 
shelter  for  his  wife.Qti) 

That  before,  upon,  and  during  all  the  several  days  and  times  in 
this  count  hereinafter  mentioned,  and  at,  &c.,  G.  P.,  late  of  the 

(?n)  Davis'  Precedents,  16G;   Starkie's  C.  P.  425. 

(n)  R.  V.  Plummer,  1  C.  &  K.  600.  Though  in  this  case  the  husband  and 
wife  separated  by  common  consent,  the  husband  granting  the  wife  a  stipu- 
lated allowance,  .which  Avas  regularly  paid,  it  was  held  that  if  he  knew,  or  Avaa 
informed  that  she  was  without  shelter,  and  refused  to  provide  her  with  it,  in 
consequence  of  which  her  death  ensued,  he  was  guilty  of  manslaughter  (even 

161 


(170)  OFFENCES   AGAINST   THE    PERSON. 

parish  of  N.,  in  the  County  of  Kent,  laborer,  was  the  husband  of 
one  M.  P.,  she  the  said  M.  P.,  during  all  the  days  and  times  in 
this  count  mentioned,  being  sick,  weak,  diseased,  distempered, 
and  disordered  in  her  body,  and  through  such  weakness,  &c., 
unable  to  provide  herself  with  such  food,  raiment,  apparel,  and 
shelter,  as  were  necessary  for  the  sustenance  and  protection  of 
her  body,  and  being  unable,  during  all  the  days  and  times  afore- 
said, to  provide  herself  with  such  medicines,  care,  and  treatment, 
as  were  necessary  for  the  cure  and  alleviation  of  her  said  sickness, 
&c. ;  all  which  several  premises  the  said  G.  P.,  on  all  the  days,  &c., 
well  knew ;  and  the  jurors  aforesaid,  &c.,  further  present,  that  it 
was  the  duty  of  the  said  G.  P.,  being  such  husband  as  aforesaid, 
during  all  the  days  and  times  aforesaid,  to  find,  provide,  and  sup- 
ply the  said  M.  P.  with  competent  and  sufficient  meat  and  drink 
for  the  sustenance  of  her  body,  and  also  with  competent  and 
sufficient  apparel,  lodging,  and  shelter  for  the  protection  of  the 
body  of  the  said  M.  P.,  and  also  with  such  medicines,  care,  and 
treatment  as  were  necessary  for  the  cure  and  alleviation  of  her 
said  sickness,  &c. ;  and  the  jurors  aforesaid,  &c.,  present,  that  the 
said  G.  P.,  on  the  nineteenth  of  November,  one  thousand  eight 
hundred  and  forty-three,  and  on  divers  other  days  and  times  be- 
tween that  day  and  the  twenty-fourth  of  November,  one  thou- 
sand eight  hundred  and  forty-three,  &c.,  at,  &c.,  did  assault  the 
said  M.  P.,  and  that  the  said  G.  P.,  on  the  said  nineteenth  of 
November,  at,  &c.,  feloniously  and  without  lawful  excuse,  and 
contrary  to  his  duty  in  that  behalf,  and  against  the  will  of  the 
said  M.  P.,  did  omit,  neglect,  and  refuse  to  find,  provide,  and  sup- 
ply to  the  said  M.  P.,  competent  and  sufficient  meat  and  drink 
for  the  sustenance  of  the  body  of  the  said  ,M.  P. ;  and  also,  dur- 
ing all  the  several  days  last  aforesaid,  at,  &c.,  feloniously,  with- 
out lawful  excuse,  contrary  to  his  duty  in  that  behalf,  and  against 
the  will  of  the  said  M.  P.,  did  omit,  neglect,  and  refuse  to  pro- 
vide and  supply  the  said  M.  P.  with  competent  and  sufficient 
apparel,  lodging,  and  shelter  for  the  protection  of  the  body  of  the 
said  M.  P.,  and  also  during  all  the  days  last  aforesaid,  at,  &c., 

though  the  wife  was  laboring  under  disease  which  must  ultimately  have  proved 
fatal),  if  it  could  be  shown  that  her  death  was  accelerated  for  want  of  the  shel- 
ter which  he  had  denied.  The  facts  not  supporting  the  indictment,  the  defend- 
ant was  acquitted. 

152 


HOMICIDE.  (I'^l) 

feloniously  without,  lawful  excuse,  contrary  to  his  duty  in  tiiat 
behalf,  and  against  the  will  of  the  said  M.  P.,  did  omit,  neglect, 
and  refuse  to  find,  provide,  and  supply  the  said  M.  P.  with  such 
medicines,  care,  and  treatment,  as  were  necessary  for  the  cure  and 
alleviation  of  the  said  sickness,  weakness,  &c.,  by  means  of  which 
said  several  premises,  she  the  said  M.  P.,  on  and  from  the  said 
nineteenth  of  November,  one  thousand  eight  hundred  and  forty- 
three,  until  the  said  twenty-fourth  of  November,  in  the  said  year, 
did  languish,  and  languishing  did  live,  and  then,  to  wit,  on  the 
said  twenty-fourth  of  November,  at,  &c.,  in  the  year  aforesaid, 
&c.,  of  the  said  mortal  sickness,  weakness,  distemper,  and  disor- 
der of  her  body,  did  die.  And  the  jurors,  &c.,  do  say,  that  the 
said  G.  P.,  her  the  said  M.  P.,  in  manner  and  form  aforesaid, 
feloniously  did  kill  and  slay,  &cc.{o) 

(171)  Murder.     In  a  duel  fought  without  the  State. (6^') 

The  jurors,  &c.,  upon  their  oath  present,  that  A.  B.,  being  an 
inhabitant  of  this  State,  to  wit,  of  B.  in  the  County  of  S.,  and 
commonwealth  aforesaid,  gentleman,  by  a  previous  appointment 
and  engagement  made  within  this  State,  to  wit,  at  B.,  in  the 
County  of  S.,  and  commonwealth  aforesaid,  on  the  first  day  of  May 
in  the  year  aforesaid,  with  one  C.  D.  to  fight  a  duel  without  the 
jurisdiction  of  this  State,  to  wit,  at  T.,  in  the  County  of  S.,  and 
State  of  M.,  did,  afterwards,  to  wit,  on  the  first  day  of  June  in  the 
year  aforesaid,  at  T.,  in  the  County  of  S.,  and  State  of  M.,  fight 
a  duel  with  the  said  C.  D.,  and  on  the  first  day  of  June  in  the 
year  aforesaid,  with  force  and  arms,  at  T.  aforesaid,  in  the  county 
aforesaid,  in  the  State  of  M.,  in  and  upon  the  said  C.  D.,  felo- 
niously, wilfully,  and  of  his  malice  aforethought,  make  an  as- 
sault; and  that  the  said  A.  B.  a  certain  pistol,  then  and  there 
charged  with  gunpowder  and  one  leaden  bullet,  then  and  there 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  discharge 

(o)  The  second  count  was  similar  to  the  first,  except  that  it  omitted  the  alle- 
gations of  assault,  and  also  of  the  acts  having  been  done  against  the  will  of  the 
deceased.  The  third  count  charged  the  death  to  have  been  caused  by  the  in- 
clemency of  the  weather ;  and  the  fourth  and  fifth  and  sixth  counts  repeated 
severally  the  allegations  in  the  second,  relative  to  the  omitting  to  supply  cloth- 
ing, lodging,  food,  and  medicine. 

(oi)  Rev.  Sts.  of  Mass.  ch.  125,  §  3. 

163 


(172)  OFFENCES   AGAINST    THE    PERSON. 

and  shoot  off,  to,  against,  and  upon  the  said  C.  D. ;  and  that  the 
said  A.  B.,  with  the  leaden  bullet  aforesaid,  out  of  the  pistol 
aforesaid,  then  and  there,  by  force  of  the  gunpowder  aforesaid, 
by  the  said  A.  B.  discharged  and  shot  out  of  the  said  pistol  as 
aforesaid,  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  strike,  penetrate,  and  wound  the  said  C.  D., 
then  and  there  giving  to  the  said  C.  D.,  with  the  leaden  bullet 
aforesaid,  so  as  aforesaid  discharged  and  shot  out  of  the  pistol 
aforesaid,  by  the  said  A.  B.,  in  and  upon  the  right  side  of  the 
belly  of  the  said  C.  D.,  one  mortal  wound,  of  the  depth  of  four 
inches,  and  of  the  breadth  of  one  inch ;  of  which  mortal  wound, 
the  said  C.  D.,  on  and  from  the  said  first  day  of  June  in  the  year 
aforesaid,  until  the  first  day  of  July  in  the  year  aforesaid,  within 
this  State,  to  wit,  at  B.,  in  the  County  of  S.,  and  commonwealth 
aforesaid,  did  suffer  and  languish,  and  languishing  did  live  ;  and 
afterwards,  to  wit,  on  the  first  day  of  July  in  the  year  aforesaid, 
at  B.,  in  the  County  of  S.,  and  commonwealth  aforesaid,  of  the 
mortal  wound  aforesaid,  died.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  A.  B..  him  the  said  C. 
D.  then  and  there,  &c.  {as  in  usual  form). 

(172)  Manslaughter  in  second  degree^  against  captain  and  engineer 
of  a  steamboat^  under  New  York  Rev.  /Statute,  p.  531,  s. 

That  A.  B.,  late  of  the  first  ward  of  the  City  of  New  York, 
in  the  County  of  New  York  aforesaid,  laborer,  and  C.  D.,  late  of 
the  same  place,  also  laborer,  on  the  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  forty-seven  (the 
said  A.  B.  then  and  there  being  the  captain  of  a  certain  steam- 
boat used  for  the  conveyance  of  passengers,  known  and  distin- 
guished by  the  name  and  title  of  the  "  Niagara,"  and  then  and 
there  having  charge  of  the  said  steamboat;  and  the  said  C.  D., 
then  and  there  being  the  said  engineer  of  the  said  steamboat, 
having  charge  of  the  boiler  of  such  boat,  and  other  apparatus 
for  the  generation  of  steam),  on  the  day  and  year  aforesaid,  and 
whilst  the  said  steamboat  was  then  and  there  navigated,  sailed, 
and  propelled  in  and  upon  a  certain  river  and  public  highway, 

(p)  For  this  form  I  am  indebted  to  J.  B.  Phillips,  Esq.,  at  the  time  assistant 
district  attorney  of  the  city  of  New  York. 

154 


HOMICIDE.  (173) 

known  and  distitiguishcd  by  the  name  and  title  of  the  Hudson 
River,  at  the  ward,  city,  and  county  aforesaid,  with  force  and 
arms,  feloniously  and  unlawfully,  from  ignorance  and  gross 
neglect  and  for  the  purpose  of  excelling  another  boat  (to  wit,  a 
certain  other  steamboat  called  the  )  in  speed,  did  create  and 

allow  to  be  created  such  an  undue  quantity  of  steam  as  to  burst 
and  break  the  boiler  of  said  boat,  and  other  apparatus  in  which 
said  steam  was  generated,  and  the  other  machinery  and  appara- 
tus connected  therewith,  by  which  bursting  and  breaking,  as  well 
as  by  reason  of  the  steam  and  scalding  water  escaping  and  issu- 
ing from  and  out  of  the  said  boiler  and  other  apparatus,  one  E. 
F.,  in  the  peace  of  God  and  of  the  said  people,  then  and  there 
being,  was  then  and  there  mortally  burned,  scalded,  and  wounded 
in  and  upon  the  head,  neck,  breast,  back,  stomach,  and  arms  of 
him  the  said  E.  F.,  of  which  said  mortal  burns,  scalds,  and 
wounds,  the  said  E.  F.  then  and  there  instantly  died. 

And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  A.  B.  and  C.  D.,  him  the  said  E.  F.,  in  the  manner 
and  by  the  means  aforesaid,  feloniously  and  wilfully  did  kill  and 
slay,  against  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  of  the  people  of  the  State  of  New 
York,  and  their  dignity. 

(173)  Against  the  engineer  of  a  steamboat^  for  so  negligently/  manag- 
ing the  engine  that  the  boiler  burst,  and  thereby  caused  the 
death  of  a  passenger. (a) 

That  Henry  Robert  Heasman,  late  of  the  parish  of  St.  Martin 
in  the  Fields,  in  the  County  of  Middlesex,  and  within  the  juris- 
diction of  the  said  court,  engineer,  on  the  twenty-seventh  day  of 
August,  in  the  year  of  our  Lord  at  the  parish  aforesaid,  in 

the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  was  employed  as  an  engineer  in  and  on  board  a  certain 
steamboat  called  the  "  Cricket,"  then  and  there  floating  on  the 
waters  of  a  certain  river  called  the  Thames,  there  situate,  in  and 
on  board  which  said  steamboat  there  then  were  divers,  to  wit,  one 
hundred,  of  her  majesty's  liege  subjects,  as  the  said  Henry  Robert 
Heasman  then  and  there  well  knew  ;  and  that  the  said  Henry 
Robert  Heasman,  as  such  engineer  as  aforesaid,  then  and  there 
(a)  2  Cox,  C.  C.     App.  p.  c. 

155 


(173)  OFFENCES    AGAINST   THE   PERSON. 


1 


had  and  took  upon  himself  the  care,  charge,  management,  and 
control  of  a  certain  steam-engine  and  boiler,  being  then  and  there 
in  and  attached  to  the  said  steamboat,  for  the  purpose  of  pro- 
pelling the  same,  and  in  which  said  boiler  there  were  then  and 
there  divers  large  quantities  of  boiling  water,  whereby  to  gener- 
ate steam,  whereby  to  work  the  said  steam-engine,  as  the  said 
Henry  Robert  Heasman  then  and  there  well  knew ;  and  that  it 
then  and  there  became  and  was  the  duty  of  the  said  Henry  Rob- 
ert Heasman,  as  such  engineer  as  aforesaid,  to  regulate  the 
quantity  and  amount  of  steam  to  be  generated  and  retained 
within  the  said  boiler,  during  the  time  the  said  boiler  was  used 
and  employed  for  the  purpose  aforesaid,  according  to  the  strength 
and  within  the  capacity  of  the  said  boiler.  And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say  that  the  said  Henry  Rob- 
ert Heasman,  on  the  day  aforesaid,  in  the  year  aforesaid,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdic- 
tion of  the  said  court,  so  having  the  care,  charge,  management, 
and  control  of  the  said  boiler  as  aforesaid,  did  wilfully  and  felo- 
niously neglect  and  omit  to  regulate  the  quantity  and  amount  of 
steam  then  and  there  being  generated  and  retained  in  the  said 
boiler,  according  to  the  strength  and  within  the  capacity  of  the 
said  boiler,  and  did  then  and  there  wilfully,  negligently,  and  felo- 
niously permit  and  suffer  a  much  larger  amount  of  steam,  to  wit, 
ten  thousand  cubic  feet  of  steam,  to  be  generated  and  retained 
within  the  said  boiler,  than  the  said  boiler  was  strong  enough  to 
contain  and  bear,  and  capable  of  containing  and  bearing,  and 
that  the  said  Henry  Robert  Heasman  did  then  and  there,  by  his 
said  negligence  in  so  permitting  and  suffering  the  said  genera- 
tion and  retention  of  steam  within  the  said  boiler  more  than  the 
said  boiler  was  strong  enough  to  contain  and  bear,  and  capable 
of  containing  and  bearing  as  aforesaid,  unlawfully  and  feloni- 
ously cause  the  said  boiler  to  burst,  and  did  then  and  there,  by 
means  of  the  said  bursting  of  the  said  boiler,  with  force  and 
arms,  unlawfully  and  feloniously  make  an  assault  upon  one 
Thomas  Shed,  the  younger,  on  board  the  said  steamboat  then 
and  there  lawfully  being,  and  the  said  Thomas  Shed  down  upon 
and  against  the  planks,  iron,  and  timbers  of  the  said  steamboat, 
called  the  "  Cricket,"  then  and  there  unlawfully  and  feloniously 
did  cast  and  throw,  thereby  then  and  there  giving  to  the  said 
156 


HOMICIDE.  (I'^'S) 

Thomas  Shed  one  mortal  fracture  of  his  skull,  of  which  said 
mortal  fracture  of  his  skull  the  said  Thomas  Shed  then  and  there 
died.  And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
say  that  the  said  Henry  Robert  Heasman,  on  the  day  aforesaid, 
in  the  year  aforesaid,  at  the  parish  aforesaid,  in  the  county  afore- 
said, and  within  the  jurisdiction  of  the  said  court,  the  said 
Thomas  Shed,  in  manner  aforesaid,  unlawfully  and  feloniously 
did  kill  and  slay,  against  the  peace,  &c. 

Second  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  Henry  Robert  Heasman,  afterwards,  to  wit, 
on  the  day  aforesaid,  and  in  the  year  aforesaid,  at  the  parish  afore- 
said, in  the  county  aforesaid,  and  within  the  jurisdiction  of  the 
said  court,  being  then  and  there  the  engineer  in  and  on  board  the 
said  steamboat  called  the  "  Cricket,"  then  and  there  floating  on 
the  waters  of  the  said  river  called  the  Thames,  there  situate,  and 
on  board  which  said  steamboat  there  were  then  and  there  divers 
large  numbers  of  her  majesty's  liege  subjects,  as  the  said  Henry 
Robert  Heasman  then  and  there  well  knew,  had  and  took  upon 
himself,  as  such  engineer  as  aforesaid,  the  care,  charge,  manage- 
ment, and  control  of  a  certain  steam-engine  and  boiler,  then  and 
there  being  in  and  on  board  the  said  steamboat,  and  in  which 
the  said  last  mentioned  boiler  there  were  then  and  there  divers 
large  quantities  of  boiling  water,  for  the  purpose  of  generating 
steam,  and  thereby  working  the  said  engine,  and  that  it  then  and 
there  became  and  was  the  duty  of  the  said  Henry  Robert  Heas- 
man then  and  there  so  to  regulate,  manage,  and  control  the  said 
last  mentioned  boiler  as  that  all  the  surplus  quantity  of  steam 
generated  and  made  within  the  said  last  mentioned  boiler,  be- 
yond such  quantity  of  steam  as  the  said  last  mentioned  boiler  was 
capable  of  containing,  bearing,  and  retaining,  might,  from  time 
to  time,  and  at  all  times,  so  often  as  might  be  necessary,  escape 
from  and  out  of  the  said  last  mentioned  boiler,  through  and  by 
means  of  certain,  to  wit,  four,  safety-valves,  which  were  then  and 
there  made  and  constructed  in  the  said  last  mentioned  boiler,  for 
such  purpose,  as  the  said  Henry  Robert  Heasman  then  and  there 
well  knew.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  the  said  Henry  Robert  Heasman,  on  the 

167 


(173)  OFFENCES    AGAINST   THE    PERSON. 

day  and  year  last  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  so  then 
and  there  having  the  care,  charge,  management,  and  control  of 
the  said  last  mentioned  boiler,  as  last  aforesaid,  did  then  and 
there  wilfully  and  feloniously  neglect  to  regulate  the  quantity 
and  amount  of  steam  then  and  there  generated  and  contained 
within  the  said  last  mentioned  boiler  as  last  aforesaid,  and  did 
then  and  there  negligently,  wilfully,  and  feloniously  permit  and 
suffer  a  larger  quantity  and  amount  of  steam  to  be  accumulated, 
confined,  and  retained  within  the  said  last  mentioned  boiler  than 
the  said  last  mentioned  boiler  was  capable  of  containing  and 
bearing,  whereby  it  then  and  there  became  and  was  necessary 
that  the  said  last  mentioned  steam  should  escape  from  and  out 
of  the  said  last  mentioned  boiler,  through  and  by  means  of  the 
said  safety-valves,  or  one  of  them.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  the  said  Henry 
Robert  Heasman,  well  knowing  the  premises,  wilfully  and  felo- 
niously did  neglect  so  to  regulate,  manage,  and  control  the  said 
last  mentioned  boiler,  as  that  the  said  last  mentioned  steam 
could  escape  from  and  out  of  the  said  last  mentioned  boiler, 
through  and  by  means  of  the  said  four  safety-valves,  or  one  of 
them,  and  did  then  and  there,  by  means  of  his  said  negligence, 
as  in  this  count  aforesaid,  unlawfully  and  feloniously  cause  the 
said  last  mentioned  boiler  to  burst,  and  did  then  and  there,  by 
means  of  the  said  last-mentioned  bursting  of  the  said  boiler, 
with  force  and  arms,  unlawfully  and  feloniously  make  an  assault 
upon  the  said  Thomas  Shed,  and  the  said  Thomas  Shed,  down 
upon  and  against  the  planks,  iron,  and  timbers  of  the  said  steam- 
boat, called  the  "  Cricket,"  then  and  there  unlawfully  and  feloni- 
ously did  cast  and  throw,  thereby  then  and  there  giving  to  the 
said  Thomas  Shed  one  mortal  fracture  of  his  skull,  of  which 
said  last  mentioned  mortal  fracture  the  said  Thomas  Shed  then 
and  there  died.  And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say  that  the  said  Henry  Robert  Heasman,  on  the 
day  and  year  last  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  the  said 
Thomas  Shed,  in  manner  last  aforesaid,  unlawfully  and  feloni- 
ously did  kill  and  slay,  against  the  peace,  &c. 
158 


HOMICIDE.  (l'i'3) 

Third  count. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  Henry  Robert  Heasman,  afterwards,  to 
wit,  on  the  day  aforesaid,  and  in  the  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdiction  of 
the  said  court,  being  then  and  there  the  engineer  in  and  on  board 
the  said  steamboat  called  the  "  Cricket,"  then  and  there  floating 
on  the  waters  of  a  certain  river  called  the  Thames,  there  situate, 
and  in  and  on  board  which  said  steamboat  there  were  then  and 
there  divers  large  numbers  of  her  majesty's  liege  subjects,  as  the 
said  Henry  Robert  Heasman  then  and  there  well  knew,  was  in- 
trusted with,  and  then  and  there  took  upon  himself,  as  such  en- 
gineer as  aforesaid,  the  care,  charge,  management,  and  control  of 
a  certain  steam-engine  and  boiler,  then  and  there  being  in  and  on 
board  the  said  steamboat,  and  in  which  said  last  mentioned  boiler 
there  were  then  and  there  divers  large  quantities  of  water,  by  the 
boiling  of  which  water  divers  large  quantities  of  steam  were 
then  and  there  continually  ascending  and  arising,  and  being  gen- 
erated and  made  within  the  said  last  mentioned  boiler,  and  that 
the  said  last  mentioned  boiler  was  then  and  there  made  and  con- 
structed with,  and  then  and  there  had  certain,  to  wit,  four,  safety- 
valves  and  openings,  through  which  all  such  steam  within  the  said 
last  mentioned  boiler,  so  being  generated  and  made  as  last  afore- 
said, beyond  such  steam  as  the  said  last  mentioned  boiler  was 
capable  of  holding  and  containing,  and  was  strong  enough  to 
hold  and  contain,  might  and  could  and  would,  from  time  to  time, 
escape  and  find  vent  from  and  out  of  the  said  last  mentioned 
boiler,  without  hurt  or  damage  to  any  of  her  majesty's  liege  sub- 
jects ;  all  which  premises  the  said  Henry  Robert  Heasman  then 
and  there  well  knew.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  say,  that,  on  the  day  and  year  last  aforesaid, 
at  the  parish  aforesaid,  in  the  county  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  and  whilst  divers  large  quantities 
of  steam  were  being  generated  and  made  in  the  said  last  men- 
tioned boiler,  as  in  this  count  aforesaid,  the  said  Henry  Robert 
Heasman  wilfully  and  feloniously  did  close,  tie  down,  fasten, 
and  keep  closed,  tied  down,  and  fastened,  the  said  four  safety- 
valves  of  the  said  last  mentioned  boiler,  and  by  such  closing, 

159 


(173)  OFFENCES    AGAINST   THE   PERSON. 

tying  down,  and  fastening,  and  keeping  closed,  lied  down,  and 
fastened,  the  said  safety-valves,  did  then  and  there  hinder  and 
prevent  the  said  steam,  so  being  generated  and  made  in  the  said 
last  mentioned  boiler  as  last  aforesaid,  from  then  and  there  escap- 
ing and  finding  vent  from  and  out  of  the  said  last  mentioned 
boiler,  as  it  might  and  ought  and  otherwise  would  then  and 
there  have  done,  and  thereby  and  by  means  of  the  premises  in 
this  count  aforesaid,  the  said  Henry  Robert  Heasman  did  then 
and  there  unlawfully  and  feloniously  cause  the  said  last  men- 
tioned boiler  to  burst,  and  did  then  and  there,  and  by  the  means 
last  aforesaid,  with  force  and  arms,  unlawfully  and  feloniously 
make  an  assault  upon  the  said  Thomas  Shed,  and  the  said 
Thomas  Shed,  down  upon  and  against  the  planks,  iron,  and  tim- 
bers of  the  said  steamboat,  called  the  "  Cricket,"  then  and  there 
unlawfully  and  feloniously  did  cast  and  throw,  thereby  then  and 
there  giving  to  the  said  Thomas  Shed  one  mortal  fracture  of  his 
skull,  of  which  said  last  mentioned  mortal  fracture  the  said 
Thomas  Shed  then  and  there  died.  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  Henry  Robert 
Heasman,  on  the  day  and  year  last  aforesaid,  at  the  parish  afore- 
said, in  the  county  aforesaid,  and  within  the  jurisdiction  of  the 
said  court,  the  said  Thomas  Shed,  in  manner  last  aforesaid,  un- 
lawfully and  feloniously  did  kill  and  slay,  against  the  peace,  &c. 

Fourth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  Henry  Robert  Heasman,  afterwards,  to  wit, 
on  the  day  aforesaid,  and  in  the  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdiction  of 
the  said  court,  being  such  engineer  as  aforesaid,  was  intrusted 
with,  and  then  and  there  took  upon  himself,  the  care,  manage- 
ment, and  control  of  a  certain  steam-engine  and  boiler,  then  and 
there  being  in  the  said  steamboat  called  the  "  Cricket,"  in  which 
said  last  mentioned  boiler  there  was  then  and  there  a  large  quan- 
tity, to  wit,  ten  thousand  cubic  feet,  of  steam,  and  it  then  and 
there  became  and  was  the  duty  of  the  said  Henry  Robert  Heas- 
man to  provide  for  and  secure  the  escape  of  a  certain  quantity, 
to  wit,  five  thousand  cubic  feet,  of  the  said  steam,  from  and  out 
of  the  said  last  mentioned  boiler,  in  order  to  prevent  the  burst- 
160 


HOMICIDE.  (I'J^'^j) 

ing  of  the  said  last  mentioned  boiler  from  the  pressure  of  the  said 
steam.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  Henry  Robert  Heasman,  well  know- 
ing the  premises,  but  wilfully  and  feloniously  neglecting  his  duty 
in  that  behalf,  did  not  then  and  there  provide  for  or  secure  the 
escape  of  the  said  part  of  the  said  steam  I'rom  and  out  of  the  said 
last  mentioned  boiler,  but,  on  the  contrary  thereof,  wilfully,  negli- 
gently, and  feloniously  did  permit  and  suffer  the  said  quantity,  to 
wit,  ten  thousand  cubic  feet,  of  steam  to  be  and  remain  in  the  said 
last  mentioned  boiler,  by  means  of  the  retention  of  which  said 
steam  in  the  said  last  mentioned  boiler,  and  the  pressure  thereof, 
the  said  last  mentioned  boiler  did  then  and  there  burst  and  explode, 
and,  by  force  of  the  said  bursting  and  explosion,  the  said  Thomas 
Shed,  then  and  there  lawfully  being  on  board  of  the  said  steam- 
boat, was  then  and  there  thrown  and  cast  down  upon  and  against 
the  planks,  iron,  and  timbers  of  the  said  steamboat,  by  which  said 
throwing  and  casting  of  the  said  Thomas  Shed  down  upon  and 
against  the  planks,  iron,  and  timbers  of  the  said  steamboat,  in 
manner  last  aforesaid,  the  said  Henry  Robert  Heasman  did  then 
and  there  wilfully  and  feloniously  give  to  the  said  Thomas  Shed 
one  mortal  fracture  of  his  skull,  of  which  last  mentioned  mortal 
fracture  the  said  Thomas  Shed  then  and  there  died.  And  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said 
Henry  Robert  Heasman,  on  the  day  and  year  last  aforesaid,  at 
the  parish  aforesaid,  in  the  county  aforesaid,  and  within  the  juris- 
diction of  the  said  court,  the  said  Thomas  Shed,  in  manner  last 
aforesaid,  unlawfully  and  feloniously  did  kill  and  slay;  against 
the  peace,  &c. 

Fifth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  Henry  Robert  Heasman,  afterward,  to  wit, 
on  the  day  aforesaid,  in  the  year  aforesaid,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  did  wilfully  and  feloniously  close,  tie  down,  and  fasten, 
and  did  keep  closed,  tied  down,  and  fastened,  certain,  to  wit, 
four,  safetv-valves  of  a  certain  boiler,  in  which  said  last  men- 
tioned boiler  divers  large  quantities,  to  wit,  ten  thousand  cubic 
feet,  of  steam,  beyond  such  quantity  of  steam  as  the  said  last 

VOL.  I. -11  161 


(173)  OFFENCES   AGAINST   THE    PERSON. 

mentioned  boiler  ^was  capable  of  bearing,  were  then  and  there 
accumulated,  confined,  and  retained,  and  that  thereby,  and  by 
nneans  of  the  premises  in  this  count  mentioned,  the  said  Henry 
Robert  Heasman  did  then  and  there  unlawfully  and  feloniously 
cause  the  said  last  mentioned  boiler  to  burst,  and  did  then  and 
there,  and  by  the  means  last  aforesaid,  with  force  and  arms,  un- 
lawfully and  feloniously  make  an  assault  upon  the  said  Thomas 
Shed,  and  the  said  Thomas  Shed,  down  upon  and  against  the 
planks,  iron,  and  timbers  of  a  certain  steamboat  called  the 
"  Cricket,"  then  and  there  beino-,  then  and  there  unlawfully  and 
feloniously  did  cast  and  throw,  thereby  then  and  there  giving  to 
the  said  Thomas  Shed  one  mortal  fracture  of  bis  skull,  of  which 
said  last  mentioned  mortal  fracture  the  said  Thomas  Shed  then 
and  there  died.  And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  Henry  Robert  Heasman,  on  the 
day  and  year  last  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  the  said 
Thomas  Shed,  in  manner  last  aforesaid,  unlawfully  and  feloni- 
ously did  kill  and  slay  ;  against  the  peace,  &c. 

Sixth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  Henry  Robert  Heasman,  afterwards,  to  wit, 
on  the  day  aforesaid,  in  the  year  aforesaid,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  did  wilfully  and  feloniously,  by  causing  to  be  made  and 
generated  within  a  certain  boiler,  and  by  keeping  and  retaining 
within  the  said  last  mentioned  boiler  divers  large  quantities,  to 
wit,  ten  thousand  cubic  feet,  of  steam  more  than  the  said  last 
mentioned  boiler  was  strong  enough  and  able  to  contain  and  bear, 
cause  the  said  last  mentioned  boiler  to  burst,  and  did  then  and 
there,  and  by  the  means  last  aforesaid,  with  force  and  arms,  unlaw- 
fully and  feloniously  make  an  assault  upon  the  said  Thomas  Shed, 
and  the  said  Thomas  Shed,  down  upon  and  against  the  planks, 
iron,  and  timbers  of  a  certain  steamboat  called  the  "  Cricket," 
then  and  there  being,  then  and  there  unlawfully  and  feloniously 
did  cast  and  throw,  thereby  then  and  there  giving  to  the  said 
Thomas  Shed  one  mortal  fracture  of  his  skull,  of  which  said  last 
mentioned  mortal  fracture  the  said  Thomas  Shed  then  and  there 
lti2 


HOMICIDE.  (l'^) 

died.  And  so  the  jurors  aforesaid,  upon  tiieir  oath  aforesaid,  do 
say  that  the  said  Henry  Robert  Heasman,  on  the  day  and  year 
last  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  the  said  Thomas 
Shed,  in  manner  last  aforesaid,  unlawfully  and  feloniously  did 
kill  and  slay  ;  against  the  peace,  &c. 

Seventh  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  Henry  Robert  Heasman,  afterwards,  to  wit, 
on  the  day  aforesaid,  in  the  year  aforesaid,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  with  force  and  arms,  in  and  upon  one  Thomas  Shed,  in  and 
on  board  of  a  certain  steamboat  called  the  "  Cricket,"  then  and 
there  lawfully  being,  did  make  an  assault,  and  a  certain  boiler, 
then  fixed  in  the  said  steamboat,  and  then  and  there  containing 
and  having  within  it  divers  large  quantities,  to  wit,  ten  thousand 
cubic  feet  of  steam,  and  ten  thousand  cubic  feet  of  vapor,  wil- 
fully and  feloniously  did  cause  to  burst  at,  upon,  and  against 
the  said  Thomas  Shed,  and  thereby  and  by  means  of  the  force 
and  violence  of  the  said  steam  and  vapor,  rushing  and  escaping 
from  the  said  last  mentioned  boiler,  and  by  means  of  the  broken 
parts  of  the  boiler,  so  then  and  there  burst  as  last  aforesaid,  the 
said  Thomas  Shed  then  and  there  unlawfully  and  feloniously  did 
cast  and  throw  down  upon  and  against  the  planks,  iron,  and  tim- 
bers of  the  said  steamboat  called  the  "  Cricket,"  then  and  there 
being,  thereby  then  and  there  giving  to  the  said  Thomas  Shed 
one  mortal  fracture  of  his  skull,  of  which  said  last  mentioned 
mortal  fracture  the  said  Thomas  Shed  then  and  there  died.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  Henry  Robert  Heasman,  on  the  day  and  year  last  aforesaid, 
at  the  parish  aforesaid,  in  the  county  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  the  said  Thomas  Slied,  in  manner 
last  aforesaid,  unlawfully  and  feloniously  did  kill  and  slay  ; 
against  the  peace,  &c. 

163 


(174)  OFFENCES   AGAINST   THE   PERSON. 

(174)  Against  agent  of  company  for  neglecting  to  give  a  proper  sig- 
nal to  denote  the  ohstr^iction  of  a  line  of  railway^  whereby  a 
collision  took  place  and  a  piassenger  was  killed,  (h^ 
The  jurors,  &c.,  upon  their  oath  present,  that  before  and  at 
the  time  of  committing  the  felony  hereinafter  mentioned,  George 
Pargeter,  late  of  the   parish  of  Shrivenham,  in    the   County  of 
Berks,  laborer,  on  the  eleventh  day  of  May,  in  the  year  of  our 
Lord  at  the    parish   aforesaid,   in  the    County   of  Berks 

aforesaid,  was  a  servant  and  policeman  in  the  service  and  em- 
ploy of  a  certain  company,  to  wit,  the  Great  Western  Railway 
Company,  in  and  upon  a  certain  railway,  to  wit,  the  Great 
"Western  Railway.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  before  and  at  the  time  of  com- 
mitting the  said  felony,  certain  signal  posts  had  been  and  were 
erected  by  the  said  company  near  to  certain  stations  upon  the 
said  railway,  for  the  purpose  of  making  signals  for  the  regula- 
tion, guidance,  and  warning  of  the  drivers  of  locomotive  engines 
attached  to  and  drawing  the  trains  of  carriages  travelling  upon 
and  along  the  said  railway,  which  said  signals  were  sufficient  and 
proper  for  the  purposes  aforesaid,  and  were,  at  the  time  of  the 
committing  of  the  said  felony,  in  constant  use  and  in  full  force 
and  effect,  and  well  known  to  the  said  G.  P.,  to  wit,  at  the  parish 

(6)  1st.  This  indictment  charges  that  the  prisoner's  duty  was  to  attend  to 
the  proper  working  of  the  signals,  according  to  tiie  rules.  Held,  that  it  was 
not  necessary  to  set  out  the  rules.  2d.  It  appeared  that  the  prisoner  had  many 
other  duties  besides  attending  to  the  signal  posts,  some  of  them  being  incom- 
patible with  his  duty  there.  Held,  that  it  was  not  necessary  to  set  forth  all  the 
other  duties,  and  then  to  negative  that  the  prisoner  was  employed  at  the  time 
in  the  discharge  of  either  of  such  other  duties.  3d.  Held,  that  an  averment 
that  it  was  prisoner's  duty  to  signal  an  obstruction,  and  there  was  an  ob- 
struction which  prisoner  neglected  to  signal,  was  a  sufficient  description  of 
the  offence,  and  that  it  was  not  necessary  to  aver  that  the  prisoner's  duty  was, 
«/' there  was  an  obstruction  and  he  saw  it,  to  signal  it,  and  that  there  was  an  ob- 
struction which  he  might  have  seen,  but  neglected  to  see.  4th.  That  it  is  suf- 
ficient to  aver  the  duty  to  be  to  make  a  "  proper  signal,"  without  further  de- 
scribing it.  5th.  That  a  count  which  charged  both  a  neglect  to  give  the  right 
signal,  and  the  giving  of  the  wrong  signal,  is  not  bad  for  duplicity.  Gth.  That 
it  is  sufficient  to  charge  "  that  the  prisoner  did  neglect  and  omit  to  alter  the 
said  signal,"  without  stating  more  particularly  what  was  the  specific  alteration 
which  he  so  neglected  to  make.     R.  v.  Pargeter,  3  Cox,  C.  C.  191. 

164 


HOMICIDE.  (IT'i) 

aforesaid,  in  the  County  of  Berks  aforesaid.  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that  one 
of  such  signals,  in  such  us(!  and  so  used  as  aforesaid,  and  known 
to  the  said  G.  P.  as  aforesaid,  when  made,  denoted,  and  was  in- 
tended to  denote  and  give  warning  and  notice  to  the  said  drivers, 
that  the  line  of  the  said  railway,  at  the  station  near  unto  which 
the  said  signal  was  made,  was  then  free  from  obstruction,  and 
that  the  driver  of  any  engine  attached  to  and  drawing  any  train 
of  carriages  then  approacliing  the  said  station  might  safely  pass 
through  the  same,  with  the  train,  without  stopping,  and  which 
said  signal  was  then  and  there  called  and  known  by  the  name  of 
the  "all  right"  signal;  and  that  one  other  of  such  signals,  so 
used  as  aforesaid,  and  known  to  the  said  G.  P.  as  aforesaid,  when 
made,  denoted,  and  was  intended  to  denote  and  give  warning 
and  notice  to  the  said  drivers,  that  the  line  of  the  said  rail  way- 
near  to  which  the  said  last  mentioned  signal  was  made,  was  then 
obstructed,  and  that  the  driver  of  any  engine  attached  to  and 
drawing  any  train  of  carriages  then  approaching  the  said  station 
could  not  safely  pass  through  the  same,  with  the  train,  without 
stopping,  and  which  said  last  mentioned  signal  was  then  and 
there  called  and  known  by  the  name  of  the  signal  '•'  to  stop." 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  certain  rules  and  directions  had  been  and  were  at 
the  time  of  the  committing  of  the  said  felony  established  for  the 
guidance  of  the  conduct  of  the  servants  and  policemen  of  the 
said  company,  employed  in  and  upon  the  said  railway,  and  hav- 
ing the  care  and  regulation  of  the  said  signals,  and  which  said 
rules  and  regulations  were  sufficient  and  proper  for  the  purposes 
aforesaid,  and  were,  at  the  time  of  committing  the  said  felony, 
in  full  force  and  effect,  and  well  known  to  the  said  G.  P.,  to  wit, 
at  the  parish  aforesaid,  in  the  said  County  of  Berks.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  G.  P.,  on  the  day  and  year  aforesaid,  at  the  parish 
aforesaid,  in  the  County  of  Berks  aforesaid,  in  and  upon  one 
Arthur  Augustus  Lea  feloniously  did  make  an  assault;  and  that 
the  said  G.  P.,  so  being  such  servant  and  policeman  in  the  ser- 
vice and  employment  of  the  said  Great  Western  Railway  Com- 
pany as  aforesaid,  then  and  there  had,  by  virtue  of  such  his 
employment,  the  care  and  regulation  of  the  said  signals,  at  a 

165 


(174)  OFFENCES    AGAINST    THE    PERSON. 

certain  signal  post  erected  and  being  near  a  certain  station  on 
the  said  line  of  the  said  railway,  to  wit,  the  Shrivenhann  Station, 
and  near  tlie  line  of  the  said  railway  there,  and  that  before  and 
on  the  said  eleventh  day  of  May,  in  the  year  aforesaid,  at  the 
parish  aforesaid,  in  the  County  of  Berks  aforesaid,  it  became  and 
was  the  duty  of  the  said  G.  P.  to  attend  to  the  due  and  proper 
righting,  exhibiting,  and  making  of  the  said  signals  at  the  said 
last  mentioned  station,  and  duly  and  properly  to  work,  exhibit, 
and  make  the  same,  according  to  the  rules  and  regulations  there 
established  for  the  guidance  of  the  conduct  of  the  servants  and 
policemen  of  the  said  cofnpany,  employed  in  and  upon  the  said 
railway  as  aforesaid.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  on  the  day  and  year  aforesaid, 
at  the  parish  aforesaid,  in  the  County  of  Berks  aforesaid,  a  cer- 
tain train  of  carriages  drawn  by  a  locomotive  engine,  under  the 
care  and  guidance  of  a  certain  driver  thereof,  to  wit,  one  Robert 
Roscoe.  was  travelling  on  the  said  railway,  to  wit,  from  Exeter 
to  London,  and  was  before  and  at  the  time  of  the  committing 
of  the  felony  by  the  said  G.  P.,  as  hereinafter  mentioned,  due  at 
the  said  Shrivenham  Station,  to  wit,  at  the  hour  of  three  of  the 
clock  in  the  afternoon  of  the  said  eleventh  day  of  May,  and  was 
expected  and  intended,  according  to  the  time  table  and  regulations 
by  the  said  company  in  that  behalf  established,  to  arrive  and 
pass  through  the  said  Shrivenham  Station  at  the  time  and  hour 
last  aforesaid,  as  the  said  G.  P.  then  and  there  well  knew  ;  and 
that  the  said  G.  P.  had  then  and  there,  in  expectation  of  the 
arrival  of  the  said  last  mentioned  train  of  carriages,  made  and 
turned  on  the  signal  called  the  "  all  right  "  signal.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
afterwards,  and  before  the  arrival  of  the  said  last  mentioned  train 
of  carriages  at  the  Shrivenham  Station,  to  wit,  on  the  day  and 
year  aforesaid,  at  the  parish  aforesaid,  in  the  County  of  Berks 
aforesaid,  a  certain  carriage,  to  wit,  a  horse  box,  was  put  and 
placed  and  continued,  and  was  upon  and  across  and  obstructing 
the  same  line  of  rails  of  the  said  railway,  near  to  the  said 
Shrivenham  Station,  as  that  on  which  the  said  last  mentioned 
train  of  carriages  was  then  travelling,  and  it  thereupon  then  and 
there,  and  in  consequence  of  such  last  mentioned  obstruction, 
became  and  was  the  duty  of  the  said  G.  P.  to  alter,  remove,  and 
166 


HOMICIDE.  (1'*'-^) 

turn  off  the  said  signal  called  the  '•  all  right"  signal,  and  to  make, 
turn  on,  and  keep  made  and  turned  on,  the  said  signal  called  the 
signal  "to  stop."  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  G.  P.,  then  and  there 
being  wholly  unmindful  and  neglectful  of  his  duty  in  that  behalf, 
at  the  time  and  place  last  aforesaid,  on  the  day  and  year  afore- 
said, at  the  parish  aforesaid,  in  the  County  of  Berks  aforesaid, 
with  force  and  arms,  unlawfully  and  feloniously  did  neglect  and 
omit  to  alter,  remove,  and  turn  off  the  said  signal  called  the  "  all 
right"  signal,  and  did  then  and  there  unlawfully  and  feloniously 
neglect  and  omit  to  make,  turn  on,  and  keep  made  and  turned 
on,  the  said  signal  called  the  signal  "  to  stop."  By  means  of 
which  said  several  premises,  and  of  the  said  felonious  omissions 
and  neglect  by  the  said  G.  P.  as  aforesaid,  the  driver  of  the  en- 
gine attached  to  the  said  last  mentioned  train  of  carriages,  to 
wit,  the  said  R.  R.,  was  induced  to  believe,  and  did  believe, 
that  the  line  of  rails  of  the  said  railway,  upon  which  the  last 
mentioned  train  of  carriages  was  then  travelling,  was  then  all 
clear  and  without  obstruction,  and  that  the  said  driver,  to  wit, 
the  said  R.  R.,  might  then  safely  pass  through  the  said  Shriven- 
ham  Station  with  the  last  mentioned  engine  and  train  of  car- 
riages without  stopping;  and  tjie  said  driver,  to  wit,  the  said  R. 
R.,  acting  upon  such  belief  as  aforesaid,  did  thereupon,  on  the 
day  and  year  aforesaid,  at  the  parish  aforesaid,  in  the  County  of 
Berks  aforesaid,  drive  the  said  engine,  so  attached  to  and  draw- 
ing the  last  mentioned  train  of  carriages  as  aforesaid,  through 
the  said  Shrivenham  Station,  and,  in  so  drawing  the  said  last 
mentioned  train  of  carriages,  did  then  and  there  unavoidably, 
and  without  any  fault  or  default  of  the  said  R.  R.,  with  great 
force  come  into  violent  contact  and  collision  with  the  said  car- 
riage, called  a  horse  box,  then  being  on,  upon,  and  across  and 
obstructing  the  same  line  of  rails  of  the  said  railway  as  that  on 
which  the  said  last  mentioned  train  of  carriages  w-as  then  trav- 
elling, iiear  to  the  said  Shrivenham  Station  there,  by  means  of 
which  said  contact  and  collision,  caused  and  occasioned  as  afore- 
said, the  said  A.  A.  L.,  then  lawfully  being  and  travelling  in  one 
of  the  carriages  of  the  said  last  mentioned  train  of  carriages,  was 
then  and  there  violently  and  forcibly  thrown  on  and  against  the 
back  and  sides  of  the  said  carriage  in  w^hich  he  was  so  travelling 

167 


(174)  OFFENCES   AGAINST   THE    PERSON. 

as  aforesaid,  and  was  then  and  there  violently  and  forcibly  cast 
and  thrown  from  and  out  of  the  said  carriage  in  which  he  was 
so  travelling  as  aforesaid,  down  to  and  upon  the  ground  there; 
by  means  of  which  said  casting  and  throwing  of  the  said  A.  A. 
L.,  as  w^ell  to  and  against  the  sides  and  back  of  the  said  carriage 
in  which  he  was  so  travelling  as  aforesaid,  as  from  and  out  of 
the  said  carriage,  down  to  and  upon  the  ground  there  as  afore- 
said, the  said  A.  A.  L.  then  and  there  had  and  receivi'd,  and  the 
said  G.  P.  then  and  there  feloniously  did  give  and  cause  to  be 
given  to  the  said  A.  A.  L.  divers  mortal  wounds,  bruises,  and 
contusions,  in  and  upon  the  head,  body,  arms,  and  legs  of  the 
said  A.  A.  L.,  and  divers  mortal  fractures  of  both  the  legs  of  the 
said  A.  A.  L.,  and  divers  mortal  ruptures  of  the  blood-vessels  in 
and  upon  the  brain  of  the  said  A.  A.  L.,  of  which  said  mortal 
wounds,  bruises,  and  contusions,  mortal  fractures,  and  mortal 
ruptures  of  the  said  A.  A.  L.,  on  and  from  the  said  eleventh  day 
of  May,  in  the  year  aforesaid,  as  well  at  the  parish  of  Sbriven- 
ham  aforesaid,  in  the  County  of  Berks  aforesaid,  as  at  the  parish 
of  Swindon,  in  the  County  of  Wilts,  did  languish,  and  languish- 
ing did  live,  and  there,  to  wit,  on  the  day  and  year  last  aforesaid, 
at  the  parish  of  Swindon  aforesaid,  in  the  County  of  Wilts  afore- 
said, of  the  said  mortal  wounds,  i)ruises,  and  contusions,  mortal 
fractures,  and  mortal  ruptures,  did  die.  And  so  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say,  that  the  said  G.  P.,  in 
manner  and  form  aforesaid,  the  said  A.  A.  L.,  at  the  parish  of 
Swindon  aforesaid,  in  the  County  of  Wilts  aforesaid,  feloniously 
did  kill  and  slay,  against  tlie  peace,  &c. 

'  Second  count. 

The  second  count  states  that  "  it  v^-as  the  duty  of  the  said  G. 
P.,  as  such  servant  and  policeman  as  aforesaid,  to  make  certain 
signals  to  the  drivers  of  locomotive  engines  attached  to  and  draw- 
ing or  propelling  trains  travelling  upon  and  along  the  said  rail- 
way, and  passing  along  the  same  at  a  certain  part  thereof,  to 
wit,  near  a  certain  station,  to  wit,  the  said  Shriven  ham  Station, 
to  wit,  at  the  parish  of  Shrivenham  aforesaid,  in  the  County  of 
Berks  aforesaid,  for  the  purpose  of  giving  warning  and  notice  to 
the  said  drivers,  whether  the  line  of  rails  of  the  said  railway  on 
and  upon  which  any  such  locomotive  engine  and  train  of  car- 
168 


HOMICIDE.  (174) 

riages  as  aforesaid,  should  or  might  be  passing  at,  near,  and 
through  the  said  Shrivenham  Station,  was  free  of  obstruction  or 
not,  of  all  which  the  said  G.  P.,  at  the  time  of  the  committing  of 
the  said  felony,  had  full  knowledge  and  notice,  to  wit,  at  the  day 
and  year  last  aforesaid,  at  the  parish  last  aforesaid,  in  the  County 
of  Berks  aforesaid."  It  then  proceeds  to  aver  that  a  train  was 
travelling  on  the  line,  "on  and  along  the  part  of  the  said  railway 
which  lies  in  the  said  parish,  &c.,  and  up  to,  and  towards  the 
place  where  it  was  the  duty  of  the  said  G.  P.  to  make  such  sig- 
nals as  aforesaid,"  and  that  just  before  the  time  of  its  arrival  at 
the  said  place,  "  there  w^as  a  certain  obstruction  on  and  upon  the 
same  line  of  rails  as  that  upon  which  the  said  last  mentioned 
locomotive  engine  and  train  was  travelling,  to  wit,  a  certain  horse 
box,  standing,  and  being  upon  and  across  the  said  last  mentioned 
line  of  rails,  near  to  the  place  where  it  was  the  duty  of  the  said 
G.  P.  to  make  such  signals  as  last  aforesaid,  to  wit,  at  the  parish 
last  aforesaid,  in  the  County  of  Berks.  And  the  said  G.  P. 
could,  and  might,  and  ought,  then  and  there,  to  wit,  at  the  parish 
last  aforesaid,  in  the  County  of  Berks,  on  the  said  eleventh  day 
of  May,  in  the  year  aforesaid,  in  the  course  of  his  duty,  and  in 
the  exercise  of  reasonable  and  proper  skill  and  diligence,  to  have 
given  warning  and  notice  by  means  of  the  proper  signal  to  the 
driver  of  the  said  last  mentioned  locomotive  engine,  attached  to 
and  drawing  the  last  mentioned  train  of  carriages,  to  wit,  the 
said  K.  R.,  tliat  there  was  then  such  obstruction  as  last  aforesaid, 
in  and  upon  the  said  line  of  rails,  to  wit,  the  said  horse  box. 
And  the  jurors,  &c.,  do  further  present,  that  the  said  G.  P.,  then 
and  there  being  wholly' unmindful  and  neglectful  of  his  duty  in 
that  behalf,  on,  &c.,  at  the  parish,  &c.,  with  force  and  arms,  un- 
lawfully and  feloniously  did  neglect  and  omit  to  give  notice  and 
warning,  by  means  of  the  proper  signal,  to  the  driver  of  the  last 
mentioned  locomotive  engine  attached  to  and  drawing  the  said 
last  mentioned  train  of  carriages,  to  wit,  the  said  R.  R.,  that  there 
was  an  obstruction  upon  the  same  line  of  rails  as  that  on  which 
the  said  last  mentioned  train  of  carriages  was  then  travelling,  by 
means  of  which,"  &:c. 

Third  count. 

The  third  count  states  the  averment  of  the  signals,  and  of  the 

169 


(174)  OFFENCES   AGAINST   THE   PERSON. 

prisoner's  duty,  thus :  Reciting,  that  the  said  G.  P.  was  in  th( 
employ,  &c.,  as   a   policeman,  and  that  "for  the  safe  and   proper" 
working  and  travelling  of  the  several  trains  of  carriages  and  loco- 
motive engines  proceeding  along  and  upon  the  said  railway,  cer- 
tain  signals  had  been  and  were  at  the  time  of  the  committing 
of  the  offence  by  the  said  G.  P.,  as  hereinafter  mentioned,  estab- 
lished by  the  said  company  at  and  near  a  certain  station  upon 
the  said  railway,  and  at   and    near  the    said  sta.tion,  to  wit,  the 
Shrivenham   Station,  at  which   the    said  G.  P.  was  employed  as 
aforesaid,  and  were  well  known  to  the  said  G.  P.,  to  wit,  at  the 
parish  last  aforesaid,  in  the  County  of  Berks  aforesaid.      And  the 
jurors,  &c.,  do  further  present,  that  on  the  said,&c.,  at  the  parish, 
&c.,  the  said  G.  P.  had  the  care  and  control  of  the  said  signals, 
at  the  said  station,  to  wit,  the  Shrivenham  Station,  at  which  the 
said  G.  P.  was  so  employed  as  servant  or  policeman  as  aforesaid, 
and  it  then  and  there  became  and  was  the  duty  of  the  said  G. 
P.,  by  virtue  of  such  his  employment  as  aforesaid,  from  time  to 
time,  and  at  all  times,  as  occasion  might  require,  to  make  due 
and  proper  signals  to  the  drivers  of  all  locomotive  engines  travel- 
ling along  and  upon  the  said   railway,  and  entering  the  said  sta- 
tion, to  wit,  the  Shrivenham  Station."     The  count  then  proceeds 
to  set  forth,  that  a  train  was  travelling  on  the  said  line  of  rail- 
way, that  ahorse  box  had  been   placed  upon  and  across  it  so  as 
to  obstruct  the  passage  of  the  train,  "and  that  it  thereupon  then 
and  there  became  the  duty  of  the  said  G.  P.  to  indicate  by  proper 
signals  to  the  driver  of  the  said  last  mentioned  train  of  carriages 
so  due  and  about  to  enter  and  pass  through  the  said  last  men- 
tioned station  as  aforesaid,  that  the  line  of  rails  of  the  said  rail- 
way upon  which  the  said  last  mentioned  train  of  carriages  were 
then  travelling,  was  there   obstructed.     And  the  jurors,  &c.,  do 
further  present,  that  the  said  G.  P.  afterwards,  to  wit,  on  the  day, 
&c.,  at  the  parish,  &c.,  wholly  neglecting  his  duty  in  that  behalf, 
with  force  and  arms,  unlawfully  and  feloniously  did  neglect  and 
omit  to  indicate  by  proper   signals  to  the  driver  of  the  said   last 
mentioned  train  of  carriages  so  travelling  upon  the  said  railway 
as  aforesaid,  and  so  due,  and  about  to   enter  and   pass  through 
the  said  last  mentioned  station  as  aforesaid,  that  the  line  of  rails 
of  the  said  railway  upon  which  the  said  last  mentioned  train  of 
carriages  was  then  travelling,  was  then  obstructed,  but  on  the 
170 


HOMICIDE.  (HS) 

contrary  thereof,  the  said  G.  P.,  then  and  there,  unlawfully  and 
•feloniously  did  indicate;  by  signals  to  the  driver  of  the  said  last 
mentioned  train  of  carriages,  that  the  line  of  rails  of  the  said 
railway,  on  which  the  said  last  mentioned  train  of  carriages  was 
then  travelling,  at  or  near  the  said  last  mentioned  station,  was 
then  all  clear  and  free  from  obstructions,  by  means  of  which  sev- 
eral premises  and  the  said  felonious  omissions  and  neglects  of 
the  said  G.  P.,"  &c.,  &c. 

[  The  fourth  count  icas  a  common  count  for  manslaughter^  by 
assaulting;  beating;  and  bruising;  Sfc] 

(175)  Against  the  driver  and  stoker  of  a  railway  engine,  for  negli- 
gently driving  against  another  engine,  whereby  the  deceased 
met  his  death. (^c') 

The  jurors,  &c.,  upon  their  oath  present,  that  S.  H.,  late  of  the 
parish  of  Richmond,  in  the  County  of  Surrey,  laborer,  and  W. 
W.,  late  of  the  same  place,  laborer,  on  the  seventeenth  day  of 
November,  in  the  year  of  our  Lord  with   force  and  arms, 

at  the  parish  aforesaid,  in  the  county  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  in  and  upon  R.  P.  feloniously  and 
wilfully  did  make  an  assault.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  before  and  on  the 
said  seventeenth  day  of  November,  the  said  S.  H.  was  employed 
by  a  certain  body  corporate,  to  wit,  the  London  and  South- Wes- 
tern Railway  Company,  for  the  purpose  of  conducting,  driving, 
managing,  and  controlling  certain  locomotive  steam-engines  be- 
longing to  the  said  London  and  South- Western  Railway  Com- 
pany, and  that  the  said  W.  W.,  before  and  on  the  day  and  year 
aforesaid,  was  employed  by  the  London  and  South- Western 
Railway  Company,  for  the  purpose  of  assisting  the  said  S.  H.  in 
the  conducting,  driving,  management,  and  control  of  such  loco- 
motive steam-engines  as  aforesaid,  and  that,  by  virtue  of  such 
their  respective  employments,  the  said  S.  H.  was,  on  the  day  and 
year  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  conducting  and 
driving,  and  then  and  there  had  the  management  and  control  of 
a  certain  locomotive  steam-engine,  to  and  behind  which  a  cer- 
tain carriage,  called  a  tender,  was  then  and  there  attached,  and 
(c)  3  Cox,  C.  C.  Appendix,  p.  Ivii. 

171 


(175)  OFFENCES  AGAINST  THE  PERSON. 

which  said  locomotive  steam-engine  and  tender  were  then  and 
there  the  property  of  and  belonging  to  the  said  London  and 
South-Western  Railway  Company,  and  were  then  and  there  in 
and  upon  a  certain  side  line  of  railway  leading  into  and  upon  a 
certain  main  line,  to  wit,  the  Richmond  Railway,  and  the  said 
W.  W.  was  then  and  there,  the  said  S.  H.,  in  and  about  the 
said  conducting,  driving,  management,  and  control  of  the  said 
locomotive  steam-engine  and  tender,  aiding  and  assisting,  and 
that  it  then  and  there  became  and  was  the  duty  of  the  said  S. 
H.  and  of  the  said  W.  W.,  by  virtue  of  their  said  employment, 
not  to  conduct  or  drive,  or  suffer  or  permit  to  be  conducted  or 
driven,  the  said  locomotive  steam-engine  and  tender  from  and 
off'  the  said  line  of  railway,  into,  upon,  or  across  the  said  main 
line  of  railway,  in  case  any  train  or  engine  should  be  then  due, 
and  about  to  arrive  at  that  part  of  the  said  main  line  of  railway 
where  the  same  was  joined  by  the  said  line  of  railway  aforesaid; 
yet  the  said  S.  H.  and  the  said  W.  W.,  well  knowing  the  premises, 
and  well  knowing  that  a  certain  train,  to  wit,  a  train  consisting 
ol  a  certain  other  locomotive  steam-engine,  with  a  certain  other 
tender,  and  divers,  to  wit,  twenty,  carriages  attached  thereto  and 
drawn  thereby,  was  then  and  there  lawfully  travelling,  and  being 
propelled  on  and  along  the  said  main  line  of  railway,  and  was 
then  due  and  about  to  arrive  at  that  part  of  the  said  main  line 
of  railway  where  the  same  was  joined  by  the  side  line  of  rail- 
way aforesaid ;  but  disregarding  their  duty  in  that  behalf,  did, 
on  the  day  and  year  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
wilfully  and  feloniously,  and  with  great  force  and  violence,  and 
in  a  wanton,  negligent,  and  improper  manner,  and  contrary  to 
their  said  duty  in  that  behalf,  and  while  the  said  train  was  so 
then  and  there  due,  and  about  to  arrive  as  aforesaid,  conduct  and 
drive,  and  suffer  and  permit  to  be  conducted  and  driven,  the  said 
first  mentioned  locomotive  steam-engine  and  tender  from  and  off 
the  said  line  of  railway,  into,  upon,  and  across  the  said  main  line 
of  railway,  and  into,  upon,  and  against  the  said  train  so  then 
and  there  lawfully  travelling  and  being  propelled  on  and  along 
the  said  main  line  of  railway  as  aforesaid;  and  that  the  said  S. 
H.  and  the  said  W.  W.  did  thereby,  and  by  means  of  the  said 
several  premises,  and  by  reason  of  the  shock  and  concussion 
172 


HOMICIDE.  (I'J^^) 

thereby  given  and  communicated  to  the  said  first  mentioned 
locomotive  ^team-engine,  then  and  there  wilfully  and  feloniously, 
and  with  great  force  and  violence,  push,  force,  dash,  drive,  and 
jam,  and  cause  to  be  |3ushed,  forced,  dashed,  driven,  and  jammed 
in,  upon,  over,  against,  and  between  a  certain  part  of  the  said 
first  mentioned  locomotive  steam-engine,  to  wit,  the  hinder  j)art 
thereof,  the  said  R.  P.,  who  was  then  and  there  standing  and 
being  in  and  upon  the  said  first  mentioned  locomotive  steam- 
engine,  and  did  then  and  there,  by  means  of  the  pushing,  forcing, 
dashing,  and  driving  and  jamming  aforesaid,  wilfully  and  feloni- 
ously inflict  and  cause  to  be  inflicted  in  and  upon  the  head,  to 
wit,  in  and  upon  the  right  side  of  the  head  of  the  said  R.  P., 
divers  mortal  wounds  and  fractures,  and  in  and  upon  the  body, 
to  wit,  in  and  upon  the  back,  sides,  belly,  thighs,  legs,  and  feet 
of  the  said  R.  P.,  divers  mortal  wounds,  bruises,  contusions, 
burns,  and  scalds,  of  which  said  several  mortal  wounds,  fractures, 
bruises,  contusions,  burns,  and  scalds,  the  said  R.  P.,  on  the  day 
and  year  aforesaid,  at  the  parish  aforesaid,  in  the  county  afore- 
said, and  within  the  jurisdiction  of  the  said  court,  instantly  died. 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  S.  H.  and  the  said  W.  W.,  the  said  R.  P.,  in  the 
manner  and  by  the  means  aforesaid,  wilfully  and  feloniously  did 
kill  and  slay,  against  the  peace,  &c. 

Second  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  S.  H.  and  the  said  W.  W.,  on  the  day  and 
year  aforesaid,  with  force  and  arms,  at  the  parish  of  Richmond,  in 
the  County  of  Surrey,  and  within  the  jurisdiction  of  the  said  court, 
in  and  upon  the  said  R.  P.,  feloniously  and  wilfully  did  make  an 
assault.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  before  and  on  the  day  and  year  aforesaid, 
the  said  S.  H.  was  employed  by  a  certain  corporate  body,  to  wit, 
the  London  and  South- Western  Railway  Company,  for  the  pur- 
pose of  conducting,  driving,  managing,  and  controlling  certain 
locomotive  steam-engines  belonging  to  the  said  London  and 
Soutli-Western  Railway  Company,  and  the  said  W.  W.,  before 
and  on  the  day  and  year  aforesaid,  was  employed  by  the  said 
London  and  South- Western  Railway  Company,  for  the  purpose 

173 


(175)  OFFENCES    AGAINST   THE  PERSON. 

of  assisting  the  said  S.  H.  in  the  conducting,  driving,  manage- 
ment, and  control  of  such  locomotive  steam-engines  as  aforesaid, 
and  that  by  virtue  of  such  their  respective  employments,  the  said 
S.  H.  was,  on  the  day  and  year  aforesaid,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  conducting  and  driving,  and  then  and  there  had  the  man- 
agement and  control  of  a  certain  locomotive  steam-engine,  to 
and  behind  which  a  certain  carriage,  called  a  tender,  was  then 
and  there  attached,  and  wliich  said  locomotive  steam-engine  and 
tender  were  then  and  there  the  property  of  and  belonging  to  the 
said  London  and  South- Western  Railway  Company,  and  were 
then  and  there  in  and  upon  a  certain  side  line  of  railway,  lead- 
ing into  and  upon  a  certain  main  line  of  railway,  to  wit,  the 
Richmond  Railway,  and  that  the  said  W.  W.  was  then  and  there, 
the  said  S.  H.,  in  and  about  the  said  conducting,  driving,  man- 
agement, and  control  of  the  said  locomotive  steam-engine  and 
tender,  aiding  and  assisting,  and  that  it  then  and  there  became 
and  was  the  duty  of  the  said  S.  H.  and  of  the  said  W.  W.,  by 
virtue  of  their  said  employment,  not  to  conduct  or  drive,  or  suffer 
or  permit  to  be  conducted  or  driven,  the  said  locomotive  steam- 
engine  and  tender  from  and  off  the  said  line  of  railway,  into, 
upon,  or  across  the  said  main  line  of  railway,  in  case  any  train 
or  engine  should  be  then  due  and  about  to  arrive  at  that  part  of 
the  said  main  line  of  railway  where  the  same  was  joined  by  the 
said  line  of  railway  aforesaid;  yet  the  said  S.  H.  and  the  said 
W.  W.,  well  knowing  the  premises,  and  well  knowing  that  a 
certain  train,  consisting  of  another  locomotive  steam-engine, 
with  a  certain  other  tender,  and  divers,  to  wit,  twenty,  carriages 
attached  thereto,  and  drawn  thereby,  was  then  and  there  lawfully 
travelling  and  being  propelled  on  and  along  the  said  main  line 
of  railway,  and  was  then  due  and  about  to  arrive  at  that  part  of 
the  said  main  line  of  railway  where  the  same  was  joined  by  the 
side  line  of  railway  aforesaid,  but  disregarding  their  duty  in  that 
behalf,  did,  on  the  day  and  year  aforesaid,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  wilfully  and  feloniously,  and  with  great  force  and  violence, 
wilfully  and  in  a  wanton,  negligent,  and  improper  manner,  con- 
trary to  their  said  duty  in  that  behalf,  and  while  the  said  train 
was  so  then  and  there  due  and  about  to  arrive  as  aforesaid,  con- 
174 


HOMICIDE.  O't^} 

duct  and  drive,  and  snfTer  and  permit  to  be  conducted  and  driven, 
the  said  first  mentioned  locomotive  steam-engine  and  tender 
from  and  off  the  said  line  of  railway,  into,  upon,  and  across  the 
said  main  line  of  railway,  and  thereby  and  by  reason  of  the  said 
premises,  and  of  the  several  negligent  and  improper  conduct  of 
the  said  S.  H.  and  of  the  said  W.  W.,  the  said  train  so  then 
travelling  and  being  propelled  on  and  along  the  said  main  line  of 
railway,  did  then  and  there  unavoidably,  with  great  force  and 
violence,  strike,  run,  and  impinge  against  the  said  first  mentioned 
locomotive  steam-engine;  and  by  means  of  the  said  several 
premises,  and  of  the  shock  and  concussion  thereby  given  and 
communicated  to  the  said  first  mentioned  locomotive  steam- 
engine,  the  said  R.  P.,  who  was  then  and  there  standing  and 
being  in  and  upon  the  said  first  mentioned  locomotive  steam- 
engine,  was  then  and  there,  with  great  force  and  violence,  pushed, 
forced,  dashed,  driven,  and  jammed  in,  upon,  over,  and  between 
a  certain  part  of  the  said  first  mentioned  locomotive  steam-en- 
gine, to  wit,  the  hinder  part  tliereof,  and  by  means  of  the  said 
pushing,  forcing,  dashing,  driving,  and  jamming,  then  and  there 
were  made  and  inflicted  in  and  upon  the  head,  to  wit,  in  and 
upon  the  right  side  of  the  head  of  the  said  R.  P.,  divers  mortal 
wounds  and  fractures,  and  in  and  upon  the  body,  to  wit,  in  and 
upon  the  back,  sides,  belly,  thighs,  legs,  and  feet  of  the  said 
R.  P.,  divers  mortal  wounds,  bruises,  contusions,  burns,  and 
scalds,  of  which  said  several  mortal  wounds,  fractures,  bruises, 
contusions,  burns,  and  scalds,  the  said  R.  P.,  on  the  day  and 
year  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  instantly  died.  And 
so  the  jurors,  &c. 

Third  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  S.  H.  and  the  said  W.  W.,  on  the  day  and 
year  aforesaid,  with  force  and  arms,  at  the  parish  of  Richmond 
aforesaid,  in  the  County  of  Surrey  aforesaid,  and  within  the  ju- 
risdiction of  the  said  court,  in  and  upon  the  said  R.  P.  feloni- 
ously and  wilfully  did  make  an  assault,  and  that  the  said  S.  H. 
was  then  and  there  conducting  and  driving,  and  then  and  there 
had  the  management  and  control  of  a  certain  locomotive  steam- 

175 


(175)  OFFENCES   AGAINST   THE    PERSON. 

engine,  to  and  behind  which  a  certain  carriage,  called  a  tender, 
was  then  and  there  attached,  and  which  said  locomotive  steam- 
engine  and  tender  were  then  and  there  in  and  upon  a  certain 
way,  to  wit,  a  certain  side  line  of  railway  leading  into  and  upon 
a  certain  main  line  of  railway,  to  wit,  the  Richmond  Railway, 
and  that  the  said  W.  W.  was  then  and  there,  the  said  S.  H.,  in 
and  about  the  said  conducting,  driving,  management,  and  con- 
trol of  the  said  locomotive  steam-engine  and  tender,  aiding 
and  assisting;  and  that  it  then  and  there  became  and  was  the 
duty  of  the  said  S.  H.,  and  of  the  said  W.  W.,  to  use  all  due 
and  proper  caution  in  and  about  the  conducting  and  driving 
the  said  locomotive  steam-engine  and  tender,  from  and  off 
the  said  side  line  of  railway,  in,  upon,  or  across  the  said  main 
line  of  railway,  yet  the  said  S.  H.  and  the  said  W.  W.,  well 
knowing  the  premises,  and  not  regarding  their  duty  in  that  be- 
half, did  not,  nor  would  use  all  due  and  proper  caution  in  and 
about  the  conducting  and  driving  of  the  said  locomotive  steam- 
engine  and  tender,  from  and  off  the  said  side  line  of  railway,  in, 
upon,  or  across  the  said  main  line  of  railway;  but  on  the  con- 
trary thereof,  did  then  and  there,  wilfully  and  feloniously,  and 
with  great  force  and  violence,  and  without  due  and  proper  cau- 
tion, and  in  a  negligent  and  improper  manner,  and  contrary  to 
their  said  duty  in  that  behalf,  conduct  and  drive  the  said  loco- 
motive steam-engine  and  tender  from  and  off  the  said  side  line 
of  railway,  into,  upon,  and  across  the  said  main  line  of  railway, 
and  into,  upon,  and  against  a  certain  train,  to  wit,  a  train  con- 
sisting of  another  locomotive  steam-engine,  with  a  certain  other 
tender,  and  divers,  to  wit,  twenty,  carriages  attached  thereto,  and 
drawn  thereby,  which  said  train  was  then  and  there  lawfully 
travelling  and  being  propelled  on  and  along  the  said  main  line  of 
railway  ;  and  that  the  said  S.  H.  and  W.  W.  did  thereby  and 
by  means  of  the  said  several  premises,  and  by  reason  of  the 
shock  and  concussion  thereby  given  and  communicated  to  the 
said  first  mentioned  locomotive  steam-engine,  then  and  there  wil- 
fully and  feloniously,  and  with  great  force  and  violence,  push, 
force, dash,  drive,  and  jam,  and  cause  to  be  pushed,  forced,  dashed, 
driven,  and  jammed  in,  upon,  over,  and  between  a  certain  part 
of  the  said  first  mentioned  locomotive  steam-engine,  to  wit,  the 
hinder  part  thereof,  the  said  R.  P.,  who  was  then  and  there 
176 


HOMICIDE.  (1"5) 

standing,  and  being  in  and  upon  the  said  first  mentioned  loco- 
motive steam-engine,  and  did  then  and  there,  by  means  of  the 
said  pushing,  forcing,  dashing,  driving,  and  jamming,  wilfully 
and  feloniously  inflict,  and  cause  to  be  inflicted,  in  and  upon 
the  head,  to  wit,  in  and  upon  the  right  side  of  the  head  of  the 
said  R.  P.,  divers  mortal  wounds  and  fractures,  and  in  and  upon 
the  body,  to  wit,  in  and  upon  the  back,  sides,  belly,  thighs,  legs, 
and  feet,  of  the  said  R.  P.,  divers  mortal  wounds,  bruises,  con- 
tusions, burns,  and  scalds,  of  which  said  several  mortal  wounds, 
fractures,  bruises,  contusions,  burns,  and  scalds,  the  said  R.  P., 
on  the  day  and  year  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
instantly  died.     And  so  the  jurors  aforesaid,  &c. 

Fourth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  S.  H.  and  the  said  W.  W.,  on  the  day  and 
year  aforesaid,  with  force  and  arms,  at  the  parish  of  Richmond 
aforesaid,  in  the  County  of  Surrey  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  in  and  upon  the  said  R.  P.  felo- 
niously did  make  an  assault,  and  that  the  said  S.  H.  was  then 
and  there  conducting  and  driving,  and  then  and  there  had  the 
management  and  control  of  a  certain  locomotive  steam-engine, 
to  and  behind  which  a  certain  carriage,  called  a  tender,  was  then 
and  there  attached,  and  which  said  locomotive  steam-engine  and 
tender  were  then  and  there  in  and  upon  a  certain  way,  to  wit, 
a  certain  side  line  of  railway,  leading  into  and  upon  a  certain 
main  line  of  railway,  to  wit,  the  Richmond  Railway,  and  that 
the  said  W.  W.  was  then  and  there,  the  said  S.  H,,  in  and  about 
the  said  conducting,  driving,  management,  and  control  of  the 
said  locomotive  steam-engine  and  tender,  aiding  and  assisting, 
and  that  it  then  and  there  became  and  was  the  duty  of  the  said 
S.  H.,  and  of  the  said  W.  W.,  to  use  all  due  and  proper  caution 
in  and  about  the  conductin"  and  drivinof  the  said  locomotive 
steam-engine  and  tender  from  and  off  the  said  side  line  of  rail- 
way, in,  upon,  or  across,  the  said  main  line  of  railway;  yet  the 
said  S.  H.,  and  the  said  W.  W.,  well  knowing  the  premises,  and 
not  regarding  their  duty  in  that  behalf,  did  not,  nor  would  use 
all  due  and  proper  caution   in  and  about  the  conducting  and 

VOL.  I. —12  177 


(175)  OFFENCES   AGAINST   THE    PERSON. 

driving  of  tlie  said  locomotive  steam-engine  and  tender,  from  and 
off  the  said  side  line  of  railway,  in,  upon,  or  across  the  said  main 
line  of  ralKvay,  but  on  the  contrary  thereof,  did  then  and  there 
wilfully  and  feloniously,  and  with  great  force  and  violence,  and 
without  due  and  proper  caution,  and  in  a  negligent  and  improper 
manner,  and  contrary  to  their  said  duty  in  that  behalf,  conduct 
and  drive  the  said  locomotive  steam-engine  and  tender  from  and 
off  the  said  side  line  of  railway,  into,  upon,  and  across  the  said 
main  line  of  railway,  and  thereby  and  by  reason  of  the  said 
several  premises,  and  of  the  said  negligent  and  improper  conduct 
of  the  said  S.  H.,  and  of  the  said  W.  W.,  a  certain  train,  to  wit, 
a  train  consisting  of  a  certain  other  locomotive  steam-engine, 
with  a  certain  other  tender,  and  divers,  to  wit,  twenty,  carriages 
attached  thereto,  and  drawn  thereby,  which  said  train  was  then 
and  there  lawfully  travelling  and  being  propelled  on  and  along 
the  said  main  line  of  railway,  did  then  and  there  inadvertently, 
with  great  force  and  violence,  strike,  run,  and  impinge  upon  and 
against  the  said  first  mentioned  locomotive  steam-engine,  and  by 
means  of  the  said  several  premises,  and  of  the  shock  and  con- 
cussion thereby  given  and  communicated  to  the  said  first  men- 
tioned locomotive  steam-engine,  the  said  R.  P.,  who  was  then 
and  there  standiijg,  and  being  in  and  upon  the  said  first  men- 
tioned locomotive  steam-engine,  was  then  and  there,  with  great 
force  and  violence,  pushed,  forced,  dashed,  driven,  and  jammed 
in,  upon,  against,  over,  and  between  a  certain  part  of  the  said 
first  mentioned  locomotive  steam-engine,  to  wit,  the  hinder  part 
thereof,  and  by  means  of  the  said  pushing,  forcing,  dashing,  driv- 
ing, and  jamming,  then  and  there  were  made  and  inflicted  in 
and  upon  the  head,  to  wit,  in  and  upon  the  right  side  of  the  head 
of  tlie  said  R.  P..  divers  mortal  wounds  and  fractures,  and  in  and 
upon  the  body,  to  wit,  in  and  upon  the  back,  sides,  belly,  thighs, 
legs,  and  feet  of  the  said  R.  P.,  divers  mortal  wounds,  bruises, 
contusions,  burns,  and  scalds,  of  which  said  several  mortal 
wounds,  fractures,  bruises,  contusions,  burns,  and  scalds,  the  said 
R.  P.,  on  the  day  and  year  aforesaid,  at  the  parish  aforesaid,  in 
the  county  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
instantly  died.  And  so  the  jurors  aforesaid,  &c. 
178 


HOMICIDE.  (175) 

Fifth  count. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  S.  H.  and  the  said  W.  W.,  on  the  day  and 
year  aforesaid,  with  force  and  arms,  at  the  parish  of  Richmond 
aforesaid,  in  the  County  of  Surrey  aforesaid,  and  within  the  juris- 
diction of  the  said  court,  in  and  upon  the  said  R.  P.  feloniously 
and  wilfully  did  make  an  assault;  and  that  the  said  S.  H.,  and 
the  said  W.  W.,  a  certain  locomotive  steam-engine,  to  and  be- 
hind which  a  certain  carriage,  called  a  tender,  was  then  and  there 
attached,  and  which  said  locomotive  steam-engine  and  tender 
were  then  and  there  being  forced  and  propelled  by  the  power  of 
steam  on  and  along  a  certain  way,  to  wit,  a  railway;  and  which 
said  locomotive  steam-engine  and  tender,  the  said  S.  H.  was 
then  and  there  managing,  controlling,  conducting,  and  driving, 
in  and  along  the  said  railway,  and  in  the  managing,  controlling, 
conducting,  and  driving  whereof  the  said  W.  W.  was  then  and 
there  the  said  S.  H.  aiding  and  assisting,  did  then  and  there  wil- 
fully and  feloniously,  by  the  wanton  and  felonious  negligence  of 
them  and  each  of  them  respectively,  and  by  the  wilful  and  felo- 
nious disregard  of  the  duties  incumbent  upon  them,  and  each  of 
them  respectively,  in  that  behalf,  cause,  occasion,  permit,  and 
suffer  to  strike  and  run  into,  upon,  and  against,  and  to  be  with 
great  force  and  violence  forced,  driven,  and  dashed  into,  upon,  and 
against  a  certain  other  locomotive  steam-engine,  to  which  said 
last  mentioned  locomotive  steam-engine  a  certain  other  tender 
and  divers,  to  wit,  twenty,  carriages,  were  then  and  there  attached, 
and  which  said  last  mentioned  locomotive  steam-en o'lue  and 
tender  and  carriages  were  then  and  there  lawfully  travelling  and 
being  propelled  on  and  along  the  said  railway,  and  that  the  said 
S.  H.,  and  the  said  W.  W.,  did  thereby,  and  by  means  of  the  said 
several  premises,  and  by  reason  of  the  shock  and  concussion 
thereby  caused  and  communicated  to  the  said  first  mentioned 
locomotive  steam-engine  and  tender,  then  and  there  wilfully  and 
feloniously,  and  with  great  force  and  violence,  push,  force,  dash, 
drive,  and  jam,  and  cause  to  be  pushed,  forced,  dashed,  driven,  and 
jammed  in,  upon,  over,  and  between  a  certain  part  of  the  said 
first  mentioned  locomotive  steam-engine,  to  wit,  the  hinder  part 
thereof,  the  said  R.  P.,  who  was  then    and  there  standing  and 

179 


(175)  OFFENCES   AGAINST   THE   PERSON. 

being  in  and  upon  the  said  first  mentioned  locomotive  steam- 
engine,  and  did  then  and  there,  and  by  means  of  the  said  push- 
ing, forcing,  dashing,  driving,  and  jamming,  wilfully  and  feloni- 
ouslv  inflict,  and  cause  to  be  inflicted,  in  and  upon  the  head,  to 
wit,  the  right  side  of  the  head  of  the  said  R.  P.,  divers  mortal 
wounds  and  fractures,  and  in  and  upon  the  body,  to  wit,  in  and 
upon  the  back,  sides,  belly,  thighs,  legs,  and  feet  of  the  said  R. 
P.,  divers  mortal  wounds,  contusions,  bruises,  burns,  and  scalds, 
of  which  said  several  wounds,  fractures,  contusions,  bruises, 
burns,  and  scalds,  the  said  R.  P.,  on  the  day  and  year  aforesaid, 
at  the  parish  aforesaid,  in  the  county  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  instantly  died.     And  so  the  jurors 

aforesaid,  &c. 

Sixth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  S.  H.  and  the  said  W.  W.,  on  the  day  and 
year  aforesaid,  with  force  and  arms,  at  the  parish  of  Richmond 
aforesaid,  in  the  County  of  Surrey  aforesaid,  and  within  the  juris- 
diction of  the  said  court,  in  and  upon  the  said  R.  P.  feloniously 
and  wilfully  did  make  an  assault,  and  that  the  said  S.  H.  and 
the  said  W.  W.,  a  certain  locomotive  steam-engine,  to  and  be- 
hind which  a  certain  carriage,  called  a  tender,  was  then  and  there 
attached,  and  which  said  locomotive  steam-engine  and  tender 
were  then  and  there  being  forced  and  propelled  by  the  power  of 
steam  on  and  along  a  certain  way,  to  wit,  a  railway,  and  which 
said  locomotive  steam-engine  and  tender  the  said  S.  H.  was  then 
managing,  controlling,  conducting,  and  driving  in  and  along  the 
said  railway,  and  in  the  managing,  controlling,  conducting,  and 
driving  whereof  the  said  W,  W.  was  then  and  there  the  said  S. 
H.  aiding  and  assisting,  did  then  and  there  wilfully  and  feloni- 
ously, and  by  the  wanton  and  felonious  negligence  of  them  and 
each  of  them  respectively,  and  by  the  wilful  and  felonious  dis- 
regard of  the  duties  incumbent  upon  them  and  each  of  them 
respectively  in  that  behalf,  and  with  great  force  and  violence, 
conduct,  drive,  and  propel,  and  cause  and  permit  to  be  con- 
ducted, driven,  and  propelled  to,  upon,  along,  and  across  a  cer- 
tain other  part  of  the  railway  aforesaid,  and  thereby  and  by 
reason  of  the  said  several  premises,  and  of  the  said  wilful  and 
felonious  negligence  of  the  said  S.  H.,  and  of  the  said  W.  W.,  a 
180 


HOMICIDE.  (1'^'5) 

certain  train,  to  wit,  a  train  consisting  of  a  certain  other  locomo- 
tive steam-engine,  with  a  certain  other  tender,  and  divers^,  to  wit, 
twenty,  carriages  attached  thereto  and  drawn  thereby,  and  which 
said  train  was  then  and  there  lawfully  travelling  and  being  pro- 
pelled on  and  along  the  said  last  mentioned  part  of  the  said  line 
of  railway,  did  then  and  there  unavoidably  and  with  great  force 
and  violence  strike,  drive,  dash,  and  impinge  upon  and  against 
the  said  first  mentioned  locomotive  steam-engine;  and  by  means 
of  the  said  several  premises,  and  of  the  shock  and  concussion 
thereby  given  and  communicated  to  the  said  first  mentioned 
locomotive  steam-engine,  the  said  R.  P.,  who  then  and  there  was 
standing  and  being  in  and  upon  the  said  first  mentioned  locomo- 
tive steam-engine,  was  then  and  there,  with  great  force  and  vio- 
lence, pushed,  forced,  dashed,  driven,  and  jammed  in,  upon,  over, 
and  between  a  certain  part  of  the  said  first  mentioned  locomotive 
steam-etjgine,  to  wit,  the  hinder  part  thereof,  and  by  means  of 
the  said  pushing,  forcing,  dashing,  driving,  and  jamming,  then 
and  there  were  inflicted  in  and  upon  the  head,  to  wit,  in  and 
upon  the  right  side  of  the  head  of  the  said  R.  P.,  divers  mortal 
wounds  and  fractures,  and  in  and  upon  the  body,  to  wit,  in  and 
upon  the  back,  sides,  belly,  thighs,  legs,  and  feet  of  the  said  R. 
P.,  divers  mortal  wounds,  bruises,  contusions,  burns,  and  scalds, 
of  which  said  mortal  wounds,  fractures,  bruises,  contusions, 
burns,  and  scalds,  the  said  R.  P.,  on  the  day  and  year  afore- 
said, at  the  parish  aforesaid,  in  the  county  aforesaid,  and  within 
the  jurisdiction  of  the  said  court,  instantly  died.  And  so  the 
jurors,  &c. 

Seventh  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  S.  H.  and  the  said  W.  W.,  on  the  day  and 
year  aforesaid,  with  force  and  arms,  at  the  parish  of  Richmond 
aforesaid,  in  the  County  of  Surrey  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  in  and  upon  the  said  R.  P.  feloni- 
ously and  wilfully  did  make  an  assault,  and  that  the  said  S.  H. 
and  W.  W.,  a  certain  locomotive  steam-engine,  to  and  behind 
which  a  certain  carriage,  called  a  tender,  was  then  and  there 
attached,  and  which  said  locomotive  steam-engine  and  tender 
were  then  and  there  the  property  of  a  certain  corporate  body,  to 
wit,  the  London  and  South- Western  Railway  Company,  and  were 

181 


(176)  OFFENCES    AGAINST   THE   PERSON. 

then  and  there  lawfully  standing  and  being  in  and  upon  a  cer- 
tain railway,  to  wit,  at  and  near  a  certain  station  belonging  to 
the  said  railway,  did  then  and  there  wilfully  and  feloniously,  and 
without  any  lawful  authority  in  that  behalf,  and  with  great  force 
and  violence,  conduct,  drive,  and  propel,  and  cause,  permit,  and 
suffer  to  be  conducted,  driven,  and  propelled  away  from  the  said 
station  along,  to,  upon,  and  across  a  certain  other  part  of  the 
railway  aforesaid,  and  thereby  and  by  reason  of  the  said  several 
premises  a  certain  train,  to  wit,  a  train  consisting  of  a  certain 
other  locomotive  steam-engine,  with  a  certain  other  tender,  and 
divers,  to  wit,  twenty,  carriages  attached  thereto  and  drawn 
thereby,  and  which  said  train  was  then  and  there  lawfully  trav- 
elling and  being  propelled  on  and  along  the  line  of  the  said  rail- 
way, did  then  and  there  unavoidably  and  with  great  force  and 
violence  strike,  dash,  drive,  and  impinge  upon  and  against  the 
said  first  mentioned  locomotive  steam-engine,  and  by  means  of 
the  said  several  premises,  and  of  the  shock  and  concussion 
thereby  given  and  communicated  to  the  said  first  mentioned 
locomotive  steam-engine,  the  said  R.  P.,  who  then  and  there  was 
standing  and  being  in  and  upon  the  said  first  mentioned  loco- 
motive steam-engine,  was  then  and  there,  with  great  force  and 
violence,  pushed,  forced,  dashed,  driven,  and  jammed  in,  upon, 
over,  and  between  a  certain  part  of  the  said  first  mentioned  loco- 
motive steam-engine,  to  wit,  the  hinder  part  thereof,  and  by 
means  of  the  said  pushing,  forcing,  dashing,  driving,  and  jam- 
ming, then  and  there  were  made  and  inflicted  upon  the  head,  in 
and  upon  the  head,  to  wit,  in  and  upon  the  right  side  of  the  head 
of  the  said  R.  P.,  divers  mortal  wounds  and  fractures,  and  in  and 
upon  the  body,  to  wit,  in  and  upon  the  back,  sides,  belly,  thighs, 
legs,  and  feet  of  the  said  R.  P.,  divers  mortal  w^ounds,  bruises, 
contusions,  burns,  and  scalds,  of  which  said  several  mortal 
wounds,  fractures,  bruises,  contusions,  burns,  and  scalds,  the  said 
R.  P.,  on  the  day  and  year  aforesaid,  at  the  parish  aforesaid,  in 
the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  instantly  died,  and  so  the  jurors,  &c. 

(176)  Involuntary  manslaughter   in  Pennsylvania,  hy  striking  an 
infant  with  a  dray. 

That   C.  M'G.,  late  of  the  county   aforesaid,   porter,  on   the 
182 


HOMICIDE.  (177) 

day  of  in  the  year,  &c.,  with  force  and  arms,  at  the 

City  of  Philadelphia,  in  the  county  aforesaid,  in  and  upon  one 
S.  G.,  an  infant  of  tender  years,  to  wit,  of  the  age  of  two  years, 
and  in  the  peace  of  God  and  the  commonwealth,  then  and  there 
being,  did  make  an  assault ;  and  that  the  said  C.  M'G.,  then  and 
there  driving  one  horse  drawing  a  dray,  did  then  and  there,  in 
the  city  aforesaid,  unlawfully  and  violently  drive  the  said  horse, 
so  as  aforesaid  dra\^'ing  the  said  dray,  to  and  against  the  said  S. 
G.,  and  that  he  the  said  C.  M'G.,  with  one  of  the  wheels  of  the 
said  dray,  did  then  and  there,  in  the  city  aforesaid,  by  such  driv- 
ing, unlawfully  and  violently,  the  said  S.  G.,  drive,  force,  and 
throw  to  the  ground,  by  means  whereof,  one  of  the  wheels  of 
the  said  dray,  against,  upon,  and  over  the  head  of  the  said  S., 
did  strike  and  go,  thereby  and  then  and  there  giving  unto  the  said 
S.  one  mortal  fracture  and  contusion,  of  which  said  mortal  frac- 
ture and  contusion,  she  the  said  S.,  on  the  same  day  and  year 
aforesaid,  at  the  county  aforesaid,  died,  and  so  the  inquest  afore- 
said, upon  their  oaths  and  affirmations  aforesaid,  do  say,  that  the 
said  C.  M'G.,  her  the  said  S.  G.,  in  manner  and  by  the  means 
aforesaid,  unlawfully  did  kill,  contrary  to  the  form  of  the  act  of 
assembly  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  Commonwealth  of  Pennsylvania. 

(177)  Murder  on  the  high  seas.  Creneral  form  as  used  in  the 
United  States  courts.  (  With  commencement  and  conclusion 
as  adopted  in  the  federal  courts  of  New  York.'){q') 

First  count.     By  striking  with  a  sharp  instrument. 

Southern  District  of  New  York,  ss.  The  jurors  of  the  United 
States  of  America,  within  and  for  the  circuit  and  district  afore- 
said, on  their  oath  present,  that  late  of  the  City  and  County 
of  New  York,  in  the  circuit  and  district  aforesaid,  mariner, 
late  of  the  City  and  County  of  New  York,  in  the  circuit  and 
district  aforesaid,  mariner,  and  {if  as  many  as  three  were  engaged) 
late  of  the  City  and  County  of  New  York,  in  the  circuit 

((7)  This  indictment,  which  is  framed  with  great  accuracy,  is  that  on  which 
Babe,  the  pirate,  was  convicted  in  the  Southern  District  of  New  York.  This, 
and  the  remaining  federal  forms  from  New  York,  were  obtained  from  Mr.  May- 
berry,  assistant  to  the  U.  S.  district  attorney. 

183 


I 


(177)  OFFENCES    AGAINST   THE   PERSON. 


1 


and  district  aforesaid,  mariner,  not  having  the  fear  of  God  before 
their  eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,   on  the  day   of  in  the  year  of  our   Lord   one 

thousand  eight  hundred  and  with  force  and  arms,  upon  the 

high  seas,  out  of  the  jurisdiction  of  any  particular  state  of  the 
said  United  States,  within  the  admiralty  and  maritime  jurisdic- 
tion of  the  said  United  States,  and  within  the  jurisdiction  of  this 
court,  in  and   on  board  of  a  certain  vessel  being  a  called 

the  owned  by  a  certain  person  or  persons  whose  names  are 

to  the  said  jurors  unknown,  being  a  citizen  or  citizens  of  the 
United  States  of  America,  in  and  upon  one  in  the  peace 

of  God  and  the  said  United  States,  then  and  there  being  on 
board  said  called  the  on   the   high  seas,  out   of  the 

jurisdiction  of  any  particular  state  of  the  said  United  States  of 
America,  within  the  admiralty  and  maritime  jurisdiction  of  the 
said  United  States,  and  within  the  jurisdiction  of  this  court, 
piratically,  feloniously,  wilfully,  and  of  their  malice  aforethought, 
did  make  an  assault,  and  that  the  said  with  a  certain  in- 

strument of  called  a  of  the  value  of  which  he 

the  said  in  his  hand  then  and  there  had  and  held,  upon 

the  of  him  the  said  then  and  there  being  on  the  high 

seas,  in  the  aforesaid,  and  out  of  the  jurisdiction  of  any 

particular  state  of  the  said  United  States,  and  within  the  jurisdic- 
tion of  this  court,  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  strike,  giving  the  said  with  the 

aforesaid,  in  manner  aforesaid,  in  and  upon  the  of 

him  the  said  several  mortal  strokes,  wounds,  and  bruises, 

to  wit,  one  mortal  wound  on  the  of  him  the  said  of 

the  length  of  inches,  and  of  the  depth  of  inches,  of 

which  said  mortal  wound  the  said  on  the  hia^h  seas  afore- 

said,  out  of  the  jurisdiction  of  any  particular  state  of  the  said 
United  States,  and  within  the  jurisdiction  of  this  court,  instantly 
died   (or  otherwise),  and  that  the  said  then  and  there  felo- 

niously, wilfully,  and  of  their  malice  aforethought,  were  present 
aiding  and    assisting  the  said  in   the   felotiy    and   murder 

aforesaid,  in  manner  and  form  aforesaid  to  do  and  commit;  and 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  in  manner  and  form  aforesaid,  piratically,  feloniously, 

and  of  their  malice  aforethought,  did  kill  and  murder,  against  the 
184 


HOMICIDE.  (l'?7) 

peace  of  the  said  United  States  of  America  and  their  dignity, 
and  against  the  form  of  the  statute  of  the  said  United  States  in 
such  case  made  and  provided. 

Second  count 

{Same  as  first  count,  substituting)',  "owned  by  citizens  [or  a 
citizen)  of  the  United  States  of  America," /or  "owned  by  a  cer- 
tain person  or  persons,  whose  names  are  to  the  said  jurors  un- 
known, being  a  citizen  of  the  United  States  of  America." 

Third  count. 

(^Same  as  second  count,  specifying  one  other  of  the  persons  engaged, 
as  principal,  and  the  others  as  aiders  and  abettors.') 

Fourth  count. 

(^Same  as  third  count,  specifying  one  other  of  the  persons  engaged, 
as  principal,  and  the  others  as  aiders  and  abettors,  and  so  on  until 
the  number  is  exhausted.) 

Fifth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  late  of  the  City  and  County  of  New  York, 

in   the  circuit  and  district  aforesaid,  mariner,  late  of  the 

same  place,  in  the  circuit  and  district  aforesaid,  mariner,  and 
late  of  the  same  place  (or  otherwise),  not  having  the  fear 
of  God  before  their  eyes,  but  being  moved  and  seduced  by  the 
instigation  of  the  devil,  on  the  day  of  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and  with  force  and 

arms,  on  the  high  seas,  out  of  the  jurisdiction  of  any  particular 
state  of  the  said  United  States  of  America,  within  the  admi- 
ralty and  maritime  jurisdiction  of  the  said  United  States,  and 
within  the  jurisdiction  of  this  court,  on  board  of  a  certain  vessel 
being   a  called   the  owned    by  citizens  of   the 

United  States  of  America,  in  and  upon  one  in  the  peace 

of  God  and  the  said  United  States,  then  and  there  being  on 
board  the  said  called  the  on  the  high  seas,  out  of  the 

jurisdiction  of  any  particular  state  of  the  said  United  States, 
and  within  the  jurisdiction  of  this  court,  piratically,  feloniously, 
wilfully,  and  of  their  malice  aforethought,  did  make  an  assault; 

185 


(177)  OFFKNCES    AGAINST    THE    PERSON. 

and  the  said  with  a  certain  instrument  of  called  a 

of  the  value  of  which  he  the  said  then  and 

there  in  his  hand  had  and  held,  and  the  said  {here 

specify  one  other)  with  a  certain  other  instrument  of  called 

a  of  the  value  of  which  he  the  said  in  his 

hand  then    and  there   had  and   held,  and  the  said  {here 

specify  one  other,  if  as  many  are  contained  in  the  complaint)  with 
a  certain  other  instrument  of  called  a  of  the  value  of 

which  he  the  said  in  his  hand  then  and  there 

had  and  held,  the  said  in  and  upon  the  head,  face,  breast, 

and  other  parts  of  the  body  of  him  the  said  then  and  there 

being  on  the  high  seas,  in  the  said  called  the      _     out  of  the 

jurisdiction  of  any  particular  state,  and  within  the  jurisdiction  of 
this  court,  then  and  there  feloniously,  wilfully,  and  of  their  malice 
aforethought,  did  strike   and   beat,  giving   him,  the  said 
then  and   there   with   the  aforesaid,  by  such  striking  and 

beating,  divers  mortal  wounds,  bruises,  and  contusions,  in  and 
upon  the  head,  face,  breast,  and  other  parts  of  the  body  of  him 
the  said  of  which  said  mortal  wounds,  bruises,  and  con- 

tusions, he  the  said  on  the  high  seas  aforesaid,  out  of  the 

jurisdiction  of  any  particular  state  of  the  said  United  States  of 
America,  and  within  the  jurisdiction  of  this  court,  did  instantly 
die  {or  as  in  preceding'  indictment).  And  so  the  jurors  aforesaid, 
on  their  oath  aforesaid,  do  say,  that  they  the  said  in  the 

manner  and  by  the  means  last  aforesaid,  on  the  high  seas,  out  of 
the  jurisdiction  of  any  particular  state  of  the  said  United  States 
of  America,  within  the  admiralty  and  maritime  jurisdiction  of 
the  said  United  States,  and  within  the  jurisdiction  of  this  coi^rt, 
piratically,  feloniously,  wilfully,  and  of  their  malice  aforethought, 
the  said  did  kill  and  murder,  against  the  peace  of  the  said 

United  States  of  America  and  their  dignity,  and  against  the  form 
of  the  statute  of  the  said  United  States  in  such  case  made  and 
provided. 

Sixth  count.     By  droivning. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  {as  in  fifth  count),  not  having  the  fear  of  God  be- 
fore their  eyes,  but  being  moved  and  seduced  by  the  instigation 
of  the  devil,  on  the  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  with  force  and  arms,  upon 

186 


HOMICIDE.  (l^'i^") 

the  high  sea?,  out   of  the  jurisdiction  of  any  particular  state  of 
the  said   United  States,  and  within  the  admiralty  and  maritime 
jurisdiction  of  the  said   United  States,  and  within  the  jurisdic- 
tion  of  this  court,  on   board  of  a  certain   vessel  being  a 
called  the  owned  in  whole  or  in  part  by  one  of  the 

a  citizen  of  the  United  States  of  America,  in  and  upon 
one  in  the  peace  of  God  and  of  the  said  United  States, 

then  and  there  being,  on  board  of  the  said  called  the 

on  the  high  seas,  out  of  the  jurisdiction  of  any  particular  state  of 
the  said  United  States,  within  the  admiralty  and  maritime  juris- 
diction of  the  said  United  States,  and  within  the  jurisdiction  of 
this  court,  piratically,  feloniously,  wilfully,  and  of  their  malice 
aforethought,  did  take  the  said  into  their  hands,  he  the  said 

then  and  there  being  on  the  high  seas,  in  the  afore- 

said, out  of  the  jurisdiction  of  any  particular  state  of  the  said 
United  States,  within,  &c.,  and  within  the  jurisdiction  of  this 
court,  and  did  then  and  there  feloniously,  wilfully,  and  of  their 
malice  aforethought,  cast,  throw,  and  push  the  said  from 

and  out  of  the  said  called  the  so  being  on  the  high 

seas  aforesaid,  out  of  the  jurisdiction  of  any  particular  state  of 
the  said  United  States,  and  within  the  jurisdiction  of  this  court, 
into  the  sea,  by  means  of  which  said  casting,  throwing,  and  push- 
ing of  the  said  into  the  sea  aforesaid,  by  them  the  said 
in  manner  and  form  aforesaid,  he  the  said  in  the 
sea  aforesaid,  with  the  waters  thereof,  was  then  and  there  choked, 
suffocated,  and  drowned,  of  which  said  choking,  sufiTocation,  and 
drowning,  he  the  said  then  and  there  in  the  sea  aforesaid, 
out  of  the  jurisdiction  of  any  particular  state  of  the  said  United 
States  of  America,  within,  &c.,  and  within  the  jurisdiction  of 
this  court,  instantly  died ;  and  so  the  jurors  aforesaid,  on  their 
oath  aforesaid,  do  say,  that  the  said  in  the  manner  and  by 
the  means  aforesaid,  on  the  high  seas,  out  of  the  jurisdiction  of 
any  particular  state  of  the  said  United  States  of  America,  within, 
&c.,  and  within  the  jurisdiction  of  this  court,  piratically,  feloni- 
ously, wilfully,  and  of  their  malice  aforethought,  the'  said 
did  kill  and  murder,  against  the  peace  and  dignity  of  the  United 
States  of  America,  and  against  the  form  of  the  statute  of  the  said 
United  States  in  such  case  made  and  provided. 

187 


(177)  OFFENCES    AGAINST   THE   PERSON. 

Seventh  count 

(^Same  as  last.,  statfd  differently,  specifying  one  as  principal  and 
the  others  as  aiding,  ^-c.') 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  {as  in  preceding-  counts  specified),  not  having  the 
fear  of  God  before  their  eyes,  but  being  moved  and  seduced 
by  the  instigation  of  the  devil,  on  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  with 

force  and  arms,  on  the  high  seas,  out  of  the  jurisdiction  of  any 
particular  state  of  the  said  United  States  of  America,  within  the 
admiralty  and  maritime  jurisdiction  of  the  said  United  States, 
and  within  the  jurisdiction  of  this  court,  on  board  of  a  certain 
vessel,  being  a  called  the  owned  in  whole  or  in  part 

by  one  [specify  one  of  the  owners)  of  the  in  the  a 

citizen  of  the  United  States  of  America,  in  and  upon  one 
in    the   peace  of  God  and  of  the  said  United  States,  then  and 
there  being  on  board  the  said  called  the  on  the  high 

seas,  out  of  the  jurisdiction  of  any  particular  state  of  the  said 
United  States,  within  the  admiralty  and  maritime  jurisdiction 
of  the  said  United  States,  and  within  the  jurisdiction  of  this 
court,  piratically,  feloniously,  wilfully,  and  of  their  malice  afore- 
thought, did  make  an  assault;  and  that  he  the  said  {he're  name 
one  as  principal),  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  take  the  said  in  his  hands,  he  the 

said  then  and  there   being  on  the  high  seas,  in  the 

aforesaid,  out  of  the  jurisdiction  of  any  particular  state  of  the 
said  United  States,  within  the  admiralty  and  maritime  jurisdic- 
tion of  the  said  United  States,  and  within  the  jurisdiction  of  this 
court,  and  did  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  cast,  throw,  and  push  the  said  from 

and  out  of  the  said  called  the  so  beins:  on  the  hisfh 

seas  as  aforesaid,  out  of  the  jurisdiction  of  any  particular  state 
of  the  said  United  States  of  America,  within  the  admiralty  and 
maritime  jurisdiction  of  the  said  United  States,  and  within  the 
jurisdiction  of  this  court,  into  the  sea,  by  means  of  which  said 
casting,  throwing,  and   pushing  of  the  said  into  the  sea 

aforesaid,  by  him  the  said  in  manner  and  form  aforesaid, 

he  the  said  in  the  sea  aforesaid,  with  the  waters  thereof, 

188 


HOMICIDE.  (177) 

was  then  and  there  choked,  suffocated,  and  drowned,  of  which 
said  choking,  suffocation,  and  drowning,  he  the  said  then 

and  there,  in  the  sea  aforesaid,  out  of  the  jurisdiction  of  any 
particular  state  of  the  said  United  States,  within  the  admiralty 
and  maritin:ie  jurisdiction  of  the  said  United  States,  and  within 
the  jurisdiction  of  this  court,  instantly  died,  and  that  the  said 
[here  name  the  remaining  ones),  then  and  there  feloniously,  wil- 
fully, and  of  their  malice  aforethought,  were  present,  aiding,  help- 
ing, abetting,  assisting,  and  maintaining  the  said  in  the 
felony  and  murder  aforesaid,  in  manner  and  form  aforesaid,  to  do 
and  commit.  And  so  the  jurors  aforesaid,  on  their  oath  afore- 
said, do  say,  that  the  said  in  manner  and  form  last  afore- 
said, piratically,  feloniously,  wilfully,  and  of  their  malice  afore- 
thought, the  said  did  kill  and  murder,  against  the  peace 
and  dignity  of  the  United  States  of  America,  and  against  the 
form  of  the  statute  of  the  said  United  States  in  such  case  made 
and  provided. 

Eighth  count. 

(^Same  as  seventh  coimt,  substituting  one  other  as  principal.') 

Ninth  count. 

{Same  as  eighth  count,  substituting  one  other  as  principal,  if  as 
many  IV ere  engaged;  aud  if  more  thati  three,  go  on  as  before  as  to 
each  person.) 

Tenth  count.     By  wounding  and  drowning. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  [as  in  the  preceding'  counts  specified)  heretofore,  to 
wit,    on  the  day   of  in    the    year    of  our   Lord    one 

thousand  eight  hundred  and  with  force  and  arms,  upon  the 

high  seas,  out  of  the  jurisdiction  of  any  particular  state  of  the 
United  States,  within  the  admiralty  and  maritime  jurisdiction 
of  the  said  United  States,  and  within  the  jurisdiction  of  this 
court,  in  and  on  board  of  a  certain  vessel,  being  a  called  the 

owned  by  citizens  of  the  United  States  of  America, 

in  and  upon  a  person  known  and  commonly  called  by  the  name 
of  a  mariner  {or  otherivise),  in  and  on  board  said  vessel, 

in  the  peace  of  God  and  of  the  said  United  States,  then  and 
there  being,  piratically,  feloniously,  wilfully,  and  of  their  malice 

1.H9 


(177)  OFFENCES    AGAINST   THE   PERSON. 

aforelhonglit,  did  make  an  assault,  and  that  they  the  said 
witlj   a  certain  instrument  of  called  a  which  he  the 

said  in   his  hand  then  and  there  had  and  held,  the 

said  in  and  upon  the   head,  breast,  and  other  parts  of  the 

body  of  him  the  said  upon  the  high  seas,  and  on  board  the 

vessel  aforesaid,  and  out  of  the  jurisdiction  of  any  particular 
state  of  the  said  United  States,  within  the  admiralty  and  mari- 
time jurisdiction  of  the  said  United  States,  and  within  the  juris- 
diction of  this  court,  piratically,  feloniously,  wilfully,  and  of  their 
malice    aforethought,   did    strike    and   beat,  giving    to    the   said 

in  and  upon  the  head,  breast,  and  other  parts  of  the  body 
of  him  the  said  upon  the  high  seas,  in  and  on  board  the 

vessel  aforesaid,  several  grievous  wounds,  and  did  then  and  there, 
in  and  on  board  the  vessel  aforesaid,  on  the  high  seas  aforesaid, 
out  of  the  jurisdiction  of  any  particular  state  of  the  said  United 
States,  and  within  the  jurisdiction  of  this  court,  piratically,  felo- 
niously, wilfully,  and  of  their  malice  aforethought,  him  the  said 

cast  and  throw  from   and  out  of  the  said  vessel  into  the 
sea,  and  plunge,  sink,  and  drown  him  the  said  in  the  sea 

aforesaid,  of  which  said  grievous  wounds,  casting,  throwing, 
plunging,  sinking,  and  drowning  the  said  upon  the  high 

seas  aforesaid,  out  of  the  jurisdiction  of  any  particular  state  of 
the  said  United  States,  and  within  the  jurisdiction  of  this  court, 
then  and  there  instantly  died.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  him  the  said 

then  and  there,  upon  the  high  seas  as  aforesaid,  and  out  of  the 
jurisdiction  of  any  particular  state,  piratically,  feloniously,  wil- 
fully, and  of  their  malice  aforethought,  did  kill  and  murder, 
against  the  peace  and  dignity  of  the  said  United  States  of  Amer- 
ica, and  against  the  form  of  the  statute  of  the  said  United  States 
in  such  case  made  and  provided. 

Eleventh  count. 

(^Same  as  tenth  count,  inserting  the  name  of  one  only  of  the  persons 
engaged,  as  principal,  ivith  the  others  as  accomplices,  making  the 
proper  variations.^ 

Last  count. 
And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  the  Southern  District  of  New  York  {or  otherwise), 
190 


HOMICIDE.  (178) 

in  the  Second  Circuit,  is  the  district  and  circuit  in  which  the  said 
was  first  apprehended  for  the  said  offence.(c) 

(178)  Murder  on  the  high  seas,  hy  striking  with  a  handspike.  (^With 
commencement  and  conclusion  as  adopted  in  the  federal  courts 
of  Pe7insijlvania.')(i') 

In  the  Circuit  Court  of  the  United  States  of  America  in  and 
for  the  Eastern  District  of  Pennsylvania,  of  Sessions,  in  the 

year,  &c. 

Eastern  District  of  Pennsylvania,  to  wit : 

The  grand  inquest  of  the  United  States  of  America,  inquiring 
for  the  Eastern  District  of  Pennsylvania,  upon  their  oaths  and 
affirmations  respectively  do  present,  that  A.  B.,  late  of  the  dis- 
trict aforesaid,  one  of  the  crew  of  an  American  vessel,  to  wit, 
the  baric  "  Active,"  not  having  the  fear  of  God  before  his  eyes, 
but  being  moved  and  seduced  by  the  instigations  of  the  devil,  on 
the  day  of  in  the  year,  &c.,  on  the  high  seas,  within 

the  admiralty  and  maritime  jurisdiction  of  the  United  States,  to 
wit,  at  the  district  aforesaid,  and  within  the  jurisdiction  of  this 
court,  with  force  and  arms,  in  and  upon  one  C.  D.,  being  the 
second  mate  of  the  said  vessel,  piratically,  feloniously,  wilfully, 
and  of  his  malice  aforethought,  did  make  an  assault ;  and  that 
the  said  A.  B.,  with  a  certain  handspike  of  the  value  of  ten 
cents,  which  he  the  said  A.  B.  in  both  his  hands  then  and  there 
had  and  held,  him  the  said  C.  D.,  in  and  upon  the  right  side  of 
the  head  of  him  the  said  C.  D.,  did  strike  and  beat,  giving  the 
said  C.  D.,  then  and  there,  with  the  handspike  aforesaid,  in  and 
upon  the  right  side  of  the  head  of  him  the  said  C.  D.,  one  mor- 
tal wounti  and  fracture,  of  the  length  of  five  inches,  and  of  the 
depth  of  two  inches,  of  which  said  mortal  wound  and  fracture 
the  said  C.  D.  then  and  there  instantly  died.  And  so  the  grand 
inquest  aforesaid,  upon  their  oaths  and  affirmations  aforesaid,  do 
say,  that  the  said  A.  B.  the  said  C.  D.,  in.  manner  and  form 
aforesaid,  piratically,  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  kill  and   murder,  contrary  to  the  form  of  the  act  of 

(f)   See  ante,  17,  18;  post,  239,  note. 

(r)  Lewis'  C.  L.  G44.  See  U.  S.  v.  Moran,  riiil.  April  Sess.  1837,  where 
Judge  Hopkinson  sustained  a  capital  conviction  upon  an  indictment  possessing 
the  same  general  features  as  the  present. 

191 


(179)  OFFENCES    AGAINST   THE   PERSON. 


I 


congress  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  United  States  of  America. 

And  the  grand  jury  aforesaid,  inquiring  as  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  further  present,  that  after  the 
commission  of  the  said  crime  on  the  high  seas,  and  within  the 
jurisdiction  of  this  court,  the  said  A.  B.  was  first  brought,  to  wit, 
on  or  about  the  day  of  in  the  year,  &c.,  into  the  said 

Eastern  District  of  Pennsylvania.(a) 

(179)  Striking  with  a  glass  bottle  on  the  forehead,  on  board  an 
America7i  vessel  in  a  foreign  jurisdiction.  (  With  commence- 
ment and  conclusion  as  adopted  in  the  federal  courts  of  Mas- 
sachusetts.') (s) 

The  jurors  of  the  said  United  States  within  and  for  the  said 
district,  upon  their  oath  present,  that  F.  M.,  late  of  Boston,  in 
said  district,  mariner,  on  the  day  of  in  the  year,  &c., 

in  and  on  board  of  the  barque  "  Eliza,"  then  lying  within  the 
jurisdiction  of  a  foreign  state  or  sovereign,  to  wit,  at  one  of  the 
islands  called  the  Navigators'  Islands,  in  the  South  Pacific,  the 
said  barque  then  and  there  being  a  ship  or  vessel  of  the  United 
States,  belonging  to  certain  citizens  of  the  United  States,  whose 
names  are  to  the  jurors  aforesaid  unknown,  with  force  and  arms, 
in  and  upon  one  P.  M.,  feloniously  and  wilfully  did  make  an  as- 
sault, and  that  the  said  F.  M.,  with  a  certain  glass  bottle  of  the 
value  of  ten  cents,  which  he  the  said  F.  M.  in  his  right  hand 
then  and  there  held,  him  the  said  P.  M.,  in  and  upon  the  head  of 
him  the  said  P.  M.,  then  and  there  feloniously  and  wilfully  did 
strike,  giving  unto  him,  the  said  P.  M.,  then  and  there,  with  the 
said  glass  bottle,  by  the  stroke  aforesaid,  in  the  manner  aforesaid, 
and  upon  the  head  of  him  the  said  P.  M.,  one  mortal  wound,  of 
the  depth  of  one  inch,  and  of  the  length  of  one  inch,  of  which 
said  mortal  wound  he  the  said  P.  M.,  on  and  from  the  day 

of  aforesaid,   until   the  day   of  on    board    said 

barque,  then  lying  at  the  said  island,  did  languish,  and  languish- 
ing did  live;  on  which  said  day  of  aforesaid,  the  said 
P.  M.,  on  the  high  seas  (the  said  barque  having  then  left  the  said 

(a)  See  ante,  17,  18  ;  post,  239,  note. 

(,s)  This  form,  as  well  as  several  that  will  follow,  I  have  obtained  through  the 
valuable  aid  of  F.  O.  Prince,  Esq.,  of  Boston. 

192 


HOMICIDE.  (180) 

island),  and  within  the  admiralty  and  maritime  jurisdiction  of 
the  said  United  States,  of  the  said  mortal  wound  died.  And  so 
the  jurors  aforesaid,  on  their  oath  aforesaid,  do  say,  that  the  said 
F.  M.  the  said  P.  M.,  in  manner  and  form  aforesaid,  feloniously 
did  kill  and  slay,  against  the  peace  and  dignity  of  the  said  United 
States,  and  contrary  to  the  form  of  the  statute  of  the  United 
States  in  such  case  made  and  provided. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  afterwards,  to  wit,  on  the  day  of  in  the 

year,  &c.,  the  said  F.  M.  was  first  apprehended  in  Nantucket,  in 
the  said  District  of  Massachusetts,  which  was  the  district  in  which 
the  said  F.  M.  was  first  brought  after  the  commission  of  the 
offence  aforesaid. 

(180)  Against  a  mother  for  drowning  her  child,  hy  throwing  it  from 
a  steamboat  on  Long  Island  Sound.  (^Commencement  and 
conclusion  as  adopted  in  the  federal  courts  of  Massachu- 
setts.)  (t) 

The  jurors,  &c.,  do  present,  that  late  of  in  the  Dis- 

trict of  M.,  wife  of  of  in  on  the  day  of 

in  the  waters  of  Long  Island  Sound,  the  same  being  an 
arm  of  the  sea,  within  the  admiralty  and  maritime  jurisdiction 
of  the  United  States,  and  out  of  the  jurisdiction  of  any  partic- 
ular state,  in  and  on  board  of  the  steamer  "  M.,"  the  same  then 
and  there  being  an  American  ship  or  vessel,  in  and  upon  the 
female  child  of  her  the  said  the  said  female  child  then  and 

there  being  an  infant  of  tender  age,  to  wit,  about  the  age  of  three 
weeks,  whose  name  is  as  yet  unknown  to  the  jurors  aforesaid, 
feloniously,  wilfully,  and  of  her  malice  aforethought,  did  make 
an  assault,  and  that  the  said  then  and  there,  feloniously, 

wilfully,  and  of  her  malice  aforethought,  did  take  the  said  female 
child  into  both  the  hands  of  her  the  said  and  did  then  and 

there  feloniously,  wilfully,  and  of  her  malice  aforethought,  cast 
and  throw  the  said  female  child  from  on  board  the  said  steamer 
"M."  into  the  waters  of  the  said  Long  Island  Sound,  by  reason 
of  which  casting  and  throwing  of  the  said  female  child  into  the 
waters  aforesaid,  the  said  female  child,  in  the  said  Long  Island 
Sound,  by  the  waters  aforesaid,  was  then  and  there  choked,  suffo- 
(0  See  U.  S.  V.  Hewson,  7  Bost.  L.  R.  361 ;  Wh.  C.  L.  §  942. 

VOL.  I.  - 13  193 


(180)  OFFENCES  AGAINST  THE  PERSON. 

cated,  and  drowned,  of  which  said  choking,  suffocating,  and 
drowning,  the  said  female  child  then  and  there  instantly  died. 
And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  say,  that 
the  said  the  said  female  child,  in  the  said  arm  of  the  sea, 

within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  without  the  jurisdiction  of  any  particular  state,  in 
the  manner  and  by  the  means  aforesaid,  feloniously,  wilfully,  and 
of  her  malice  aforethought,  did  kill  and  murder,  against  the 
peace  and  dignity  of  the  said  United  States,  and  contrary  to  the 

form,  &c. 

Second  count. 

(  Omitting  averment  of  relationship,  and  charging  the  sex  to  he  un- 
hnown.') 

And  the  jurors,  &c.,  further  present,  that  late  of  in 

the  District  of  M.,  wife  of  of  in  on  the 

day  of  in  the  waters  of  the  Long  Island  Sound,  the  same 

being  an  arm  of  the  sea,  within  the  admiralty  and  maritime 
jurisdiction  of  the  United  States,  and  out  of  the  jurisdiction  of 
any  particular  state,  in  and  on  board  of  the  steamer  "  M.,"  the 
same  then  and  there  being  an  American  ship  or  vessel,  in  and 
upon  a  certain  child,  the  said  child  then  and  there  being  an  infant 
of  tender  age,  to  wit,  under  the  age  of  one  year,  whose  name 
and  sex  are  unknown  to  the  jurors  aforesaid,  feloniously,  wilfully, 
and  of  her  malice  aforethought,  did  make  an  assault ;  and  that 
the  said  then  and   there  feloniously,  wilfully,  and  of  her 

malice  aforethought,  did  take  the  said  child  into  both  the  hands 
of  her  the  said  and  did  then  and  there  feloniously,  wilfully, 

and  of  her  malice  aforethought,  cast  and  throw  the  said  child 
from  on  board  the  said  steamer  "  M."  into  the  waters  of  said 
Long  Island  Sound,  by  reason  of  which  casting  and  throwing  of 
the  said  child  into  the  waters  aforesaid,  the  said  child,  in  the 
said  Long  Island  Sound,  by  the  waters  aforesaid,  was  then  and 
there  choked,  suffocated,  and  drowned,  of  which  said  choking, 
suffocating,  and  drowning,  the  said  child  then  and  there  instantly 
died.  And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  say, 
that  the  said  the   said  child  on  the  said  arm  of  the  sea, 

within  the  admiralty  and   maritime  jurisdiction  of  the  United 
States,  and  without  the  jurisdiction  of  any  particular  state,  in  the 
manner  and  by  the  means  aforesaid,  feloniously,  wilfully,  and  of 
11^4 


HOMICIDE.  (181) 

her  malice  aforethought,  did  kill  and  murder,  against  the  peace 
and  dignity  of  the  said  United  States,  and  contrary  to  the  form, 
&c. 

And  the  jurors,  &c.,  on,  &c.,  further  present,  that  afterwards, 
to  wit,  on  the  said  the  said  was  first  apprehended  at 

in  said  District  of  Massachusetts,  and  that,  &.c.(a) 

(181)  Murder  on  the  high  seas,  with  a  hatchet.(u) 

Southern  District  of  New  York,  ss.  The  jurors  of  the  United 
States  of  America,  within  and  for  the  district  and  circuit  afore- 
said, on  their  oath  present,  that  of  the  City  and  County  of 
New  York,  in  the  district  and  circuit  aforesaid,  mariner, 
of  the  said  city  and  county,  mariner,  and  of  the  said  city 
and  county,  mariner,  not  having  the  fear  of  God  before  their 
eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,  on  the  day  of  in  the  year,  &c.,  with  force  and 
arms,  upon  the  high  seas,  out  of  the  jurisdiction  of  any  partic- 
ular state  of  the  said  United  States,  within  the  admiralty  and 
maritime  jurisdiction  of  the  said  United  States,  and  within  the 
jurisdiction  of  this  court,  on  board  of  a  certain  vessel,  being  a 
called  the  owned  by  a  certain  person  or  persons 
whose  names  are  to  the  said  jurors  unknown,  then  being  a  citi- 
zen or  citizens  of  the  United  States  of  America,  in  and  upon 
one  in  the  peace  of  God  and  of  the  said  United  States, 
then  and  there  being,  on  board  the  said  called  the  on 
the  high  seas,  out  of  the  jurisdiction  of  any  particular  state,  and 
within  the  jurisdiction  of  this  court,  piratically,  feloniously,  wil- 
fully, and  of  their  malice  aforethought,  did  make  an  assault; 
and  that  the  said  with  a  certain  instrument  of  wood  and 
iron  called  a  hatchet  {or  other  instrument),  of  the  value  of 
which  the  said  in  his  hand  then  and  there  had  and 
held,  the  said  in  and  upon  the  head,  face,  breast,  and  other 
parts  of  the  body  of  him  the  said  then  and  there  being,  on 
the  high  seas,  in  the  aforesaid,  and  out  of  the  jurisdiction 
of  any  particular  state,  and  within  the  jurisdiction  of  this  court, 
then  and  there  feloniously,   wilfully,  and  of  his   malice  afore- 

(a)  See  ante,  17,  18;  post,  239,  note. 

(«)  On  this  indictment  the  defendants  were  convicted  in  the  Circuit  Court 
for  the  Southern  District  of  New  York  in  U.  S.  v.  Wilhelm  et  al. 

195 


(181)  OFFENCES    AGAINST   THE   PERSON. 

thought,  did  strike,  giving  to  the  said  then  and  there,  with 

the  aforesaid,  by  such  striking  with  the  aforesaid,  in 

manner  aforesaid,  in  and  upon  the  head,  face,  breast,  and  other 
parts  of  the  body  of  him  the  said  several  mortal  strokes, 

wounds,  and  bruises,  to  wit,  one  mortal  wound  on  of  him 

the  said  of  the  length  of  inches,  and  of  the  depth  of 

inches,  one  mortal  wound  on  the  of  him  the  said 

of  the  length  of  inches,  and  of  the  depth  of 

inches,  and  one  mortal  wound  on  the  of  him  the  said 

of  the  length  of  inches,  and  of  the  depth  of  inches, 

of  which  said  mortal  wounds  the  said  from  the  said 

day  of  in  the  year  aforesaid,  until  the  day  of  the  same 

month  {or  otherwise)  of  in  the  year  aforesaid,  on  the  high 

seas  aforesaid,  out  of  the  jurisdiction  of  any  particular  state,  and 
within  the  jurisdiction  of  this  court,  did  languish,  and  languish- 
ing did  live  ;  on  which  said  day  of  in  the  year  afore- 
said, the  said  on  the  high  seas  aforesaid,  out  of  the  juris- 
diction of  any  particular  state,  and  within  the  jurisdiction  of  this 
court,  of  the  said  mortal  wounds,  died.  And  that  the  said 
and  then  and  there  feloniously,  wilfully,  and  of  their  malice 
aforethought,  were  present  aiding,  abetting,  comforting,  assisting, 
and  maintaining  the  said  in  the  felony  and  murder  afore- 
said, in  manner  and  form  aforesaid,  to  do  and  commit,  and  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  {here  insert  the  names  of  all)  in  manner  and  form 
aforesaid,  piratically,  feloniously,  wilfully,  and  of  their  malice 
aforethought,  the  said  did  kill  and  murder,  against  the  peace 
and  dignity  of  the  United  States  of  America,  and  the  form  of 
the  statute  of  the  said  United  States  in  such  case  made  and  pro- 
vided. 

Second  count. 

{Same  as  preceding"  count,  inserting  the  name  of  one  other  as 
principal;  and  also,  instead  of  "  being  a  called  the  owned 
by  a  certain  person  or  persons,  whose  names  are  to  the  said  jurors 
unknown,  then  being  a  citizen  or  citizens  of  the  United  States 
of  America,"  insert  "being  a  called  the  owned  by 

citizens  {or  a  citizen)  of  the  United  States  of  America.") 
1136 


HOMICIDE.  (181) 

Third  count. 

(^Same  as  preceding  count,  inserting  the  name  of  one  other  person 
as  principal  if  as  many  as  three  were  engaged.^ 

Fourth  count. 
And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  of  the  City  and  County  of  New  York,  in  the 

district  and  circuit  aforesaid,  mariner,  of  the  said  city  and 

county,  in  the  district  and  circuit  aforesaid,  mariner,  and 
of  the  said  city  and  county,  in  the  district  and  circuit  aforesaid, 
mariner  {if  as  many  are  specified  in  the  complaint),  not  having  the 
fear  of  God  before  their  eyes,  but  being  moved  and  seduced  by 
the  instigation  of  the  devil,  on  the  day  of  in  the  year, 

&c.,  with  force  and  arms,  upon  the  high  seas,  out  of  the  jurisdic- 
tion of  any  particular  state  of  the  said  United  States,  within  the 
admiralty  and  maritime  jurisdiction  of  the  said  United  States, 
and  witliin  the  jurisdiction  of  this  court,  on  board  of  a  certain 
vessel  being  a  called  the  owned  by  citizens  [or 

a  citizen)  of  the  United  States  of  America,  in  and  upon  one 
in  the  peace  of  God  and  the  said  United  States,  then  and 
there  being,  on  board  the  said  called  the  on  the  high 

seas,  out  of  the  jurisdiction  of  any  particular  state,  within  the 
admiralty  and  maritime  jurisdiction  of  the  said  United  States  of 
America,  and  within  the  jurisdiction  of  this  court,  piratically, 
feloniously,  wilfully,  and  of  their  malice  aforethought,  did  make 
an  assault,  and  that  the  said  {specify  one),  with  a  certain 

instrument  of  called  a  of  the  value  of  which 

he  the  said  then  and  there  in  his  hand  had  and  held, 

and  the  said  {specify  another),  with  a  certain  other  instru- 

ment of  called  a  of  the  value  of  which  he  the 

said  in  his  hand  then  and  there  had  and  held,  and 

the  said  {specify  another  if  as  many  as  three  loere  eng-ag-ed), 

with  a  certain  instrument  of  of  the  value  of  which 

he  the  said  in  his  hand  then  and  there  had  and  held, 

the  said  in  and  upon  the  head,  face,  breast,  and  other  parts 

of  the  body  of  him  the  said  then  and  there  being  on  the 

high  seas,  in  the  aforesaid,  out  of  the  jurisdiction  of  any 

particular  state,  and  within  the  jurisdiction  of  this  court,  then 

197 


(181)  OFFENCES    AGAINST   THE    PERSON. 

and  there,  feloniously,  wilfully,  and  of  their  malice  aforethought, 
did  strike,  giving  to  the  said  then  and  there,  with  the 

aforesaid,  by  such  striking,  with  the  aforesaid,  in  manner 

aforesaid,  in  and  upon  the  head,  face,  breast,  and  other  parts  of 
the  body  of  him  the  said  several  mortal  strokes  and  wounds, 

to  wit,  one  mortal  stroke  and  wound  on  the         of  him  the  said 

of  the  length  of  inches,  and  of  the  depth  of 

inches,  one  mortal  stroke  and  wound  on  the  of  him  the  said 

of  the  length  of  inches,  and  of  the  depth  of 

inches,  one  mortal  stroke  and  wound  on  the  side  of  the 

breast  of  him  the  said  of  the  length  of  inches,  and  of 

the  depth  of  inches,  and  one  other  mortal  stroke  and  wound 

on  the  of  him  the  said  of  the  length  of  inches, 

and  of  the  depth  of  inches,  of  which  said  mortal  strokes  and 

wounds  the  said  from  the  said  day  of  in  the 

year,  &c.,  on  the  high  seas  aforesaid,  out  of  the  jurisdiction  of  any 
particular  state,  and  within  the  jurisdiction  of  this  court,  did 
languish,  and  languishing  did  live,  until  the  day  of  the 

same  month  {or  otherwise)  of  in  the  year  last  aforesaid,  on 

which  said  day  of  in  the  year  last  aforesaid,  the  said 

on  the  high  seas  aforesaid,  out  of  the  jurisdiction  of  any 
particular  state,  and  within  the  jurisdiction  of  this  court,  of  the 
said  mortal  strokes  and  wounds  died. 

And  the  jurqrs  aforesaid,  on  their  oath  aforesaid,  do  say,  that 
they  the  said  him  the  said  in  the    manner  and  by 

the  means  last  aforesaid,  on  the  high  seas,  out  of  the  jurisdiction 
of  any  particular  state,  and  within  the  jurisdiction  of  this  court, 
piratically,  feloniously,  wilfully,  and  of  their  malice  aforethought, 
the  said  did  kill  and  murder,  against,  &c.,  and  against,  &c. 

Final  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  Southern  District  of  New  York,  in  the  second 
circuit  aforesaid,  is  the  district  and  circuit  in  which  the  said 
offenders,  viz.  the  said  were  first  brought  and  apprehended 

for  the  said  offences.(wi) 

(«!)  As  a  matter  of  course,  where  the  party  or  parties  have  not  been  arrested, 
but  where  the  indictiflent  is  drawn  for  the  purpose  of  issuing  a  bench  warrant, 
the  count  in  conclusion  is  not  to  be  put  in.     Where  an  offence  has  been  com- 

198 


HOMICIDE.  (182) 

(182)  Manslaughter  on  the  high  8ea8.(y) 

First  ebunt.  Droivning,  ^c,  on  a  vessel  whose  name  ivas  un- 
known, S^c. 
The  grand  inquest  of  the  United  States  of  America,  inquiring 
in  and  for  the  Eastern  District  of  Pennsylvania,  on  their  oaths 
and  affirmations  respectively,  do  present,  that  A.  W.  H.,  late  of 
the  district  aforesaid,  mariner,  not  having  the  fear  of  God  before 
his  eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,  on  the  day  of  in  the  year,  &c.,  upon  the  high 

seas,  within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  out  of  the  jurisdiction  of  any  particular  state,  and 
within  the  jurisdiction  of  this  court,  on  board  of  a  certain  vessel, 
to  wit,  a  vessel  the  name  whereof  is  to  the  jurors  unknown,  then 
and  there  belonging  to  a  citizen  of  the  United  States,  to  wit,  one 
J.  P.  v.,  late  of  the  district  aforesaid,  with  force  and  arms,  in  and 
upon  a  person  known  and  commonly  called  by  the  name  of  F. 
A.,  in  and  on  board  of  said  vessel,  iu  the  peace  of  God  and  of  the 
United  States,  then  and  there  being,  unlawfully  and  feloniously 
did  make  an  assault;  and  that  he  the  said  A.  W.  H.,  then  and 
there  on  board  of  the  said  vessel,  upon  the  high  seas,  within  the 
admiralty  and  maritime  jurisdiction  of  the  United  States,  and 

mitted  against  the  laws  of  the  United  States  of  America,  under  the  admiralty 
and  maritime  jurisdiction,  in  or  near  a  foreign  port  or  place,  in  and  on  board  of 
a  vessel  belonging  in  whole  or  in  part  to  a  citizen  or  citizens  of  the  United 
States  of  America  (see  act  of  Congress  of  March  3d,  1825,  §  5),  the  indictment 
should,  after  beginning  in  the  usual  way,  proceed  thus  :  on  the  high  seas,  near, 
&c.,  or,  at  a  port  or  place  within  the  jurisdiction  of  a  foreign  state  or  ^Svereign, 
to  wit  (name  distinctly  the  port  or  place,  and  the  state  or  sovereign  under  whose 
jurisdiction  it  is),  on  waters  out  of  the  jurisdiction  of  any  particular  state  of  the 
sa;id  United  States  of  America,  within  the  admiralty  and  maritime  jurisdiction 
of  the  said  United  States,  and  within  the  jurisdiction  of  this  court,  in  and  on 
board  of  a  certain  American  vessel,  being  a  called  the  belonging  in 

whole  or  in  part  to  a  certain  person  or  persons,  whose  name  or  names  are  to  the 
said  jurors  unknown,  then  and  still  being  a  citizen  or  citizens  of  the  said  United 
States  of  America,  &c. 

(v)  The  defendant  was  convicted  under  this  indictment,  and  was  sentenced 
to  a  small  punishment,  but  was  afterwards  pardoned  by  the  President.  The. 
case  was  of  great  singularity,  involving  the  question,  Avhether  a  mariner  in  a  case 
of  extreme  necessity,  is  justified  in  throwing  overboard^  passenger  from  a  boat 
unable  to  hold  the  two.     See  Wh.  C.  L.  §  1028. 

199 


(182)  OFFENCES   AGAINST   THE   PERSON. 

out  of  the  jurisdiction  of  any  particular  state,  and  within  the 
jurisdiction  of  this  court,  with  force  and  arms,  unlawfully  and 
feloniously  did  cast  and  throw  the  said  F.  A.  from  and  out  of  the 
said  vessel  into  the  high  seas  there,  by  means  of  which  said  cast- 
ing and  throwing  of  him  the  said  F.  A.  from  and  out  of  the  said 
vessel  into  the  high  seas  aforesaid,  he  the  said  F.  A.,  in  and  with 
the  water  thereof,  upon  the  high  seas,  within  the  admiralty  and 
maritime  jurisdiction  of  the  United  States,  and  out  of  the  juris- 
diction of  any  particular  state,  and  within  the  jurisdiction  of 
this  court,  then  and  there  was  suffocated  and  drowned,  of  which 
said  suffocation  and  drowning  he  the  said  F.  A.  did  then  and 
there  instantly  die.  And  so  the  grand  inquest  aforesaid,  inquir- 
ing as  aforesaid,  on  their  oaths  and  affirmations  aforesaid,  do 
say,  that  the  said  A.  W.  H.  him  the  said  F.  A.,  in  the  manner 
and  by  the  means  aforesaid,  unlawfully  and  feloniously  did  kill, 
contrary,  &c.,  and  against,  &c. 

Second  count.     Same  on  a  long-hoat  belonging  to  J.  P.  V.,  ^c. 

And  the  grand  inquest  aforesaid,  inquiring  as  aforesaid,  on 
their  oaths  and  affirmations  aforesaid,  do  further  present,  that 
afterwards,  to  wit,  on  the  day  and  year  aforesaid,  the  said  A.  W. 
H.,  not  having  the  fear  of  God  before  his  eyes,  but  being  moved 
and  seduced  by  the  instigation  of  the  devil,  upon  the  high  seas, 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  out  of  the  jurisdiction  of  any  particular  state,  and 
within  the  jurisdiction  of  this  court,  on  board  of  a  certain  vessel, 
to  wit,  the  long-boat  of  the  ship  "  W.  B.,"  then  and  there  belong- 
ing to  ^  citizen  of  the  United  States,  to  wit,  one  J.  P.  V.,  late  of 
the  district  aforesaid,  with  force  and  arms,  in  and  upon  a  person 
known  and  commonly  called  by  the  name  of  F.  A.,  in  and  on 
board  of  said  vessel,  in  the  peace  of  God  and  of  the  United 
States,  then  and  there  being,  unlawfully  and  feloniously  did  make 
an  assault;  and  that  he  the  said  A.  W.  H.  then  and  there,  on 
board  of  the  said  vessel  upon  the  high  seas,  within  the  admiralty 
and  maritime  jurisdiction  of  the  United  States,  and  out  of  the 
jurisdiction  of  any  particular  state,  and  within  the  jurisdiction  of 
this  court,  with  force  and  arms,  unlawfully  and  feloniously  did 
cast  and  throw  tht^said  F.  A.  from  and  out  of  the  said  vessel 
into  the  high  seas,  by  means  of  which  said  casting  and  throwing 
200 


HOMICIDE.  (183) 

of  him  the  said  F.  A.,  from  and  out  of  the  said  vessel  into  the 
high  seas  aforesaid,  he  the  said  F.  A.,  in  and  with  the  waters 
thereof,  upon  the  high  seas  aforesaid,  within  the  admiralty  and 
maritime  jurisdiction  of  the  United  States,  and  out  of  the  juris- 
diction of  any  particular  state,  and  within  the  jurisdiction  of  this 
court,  then  and  there  was  suffocated  and  drowned,  of  which  said 
suffocation  and  drowning  he  the  said  F.  A.  did  then  and  there 
instantly  die.     And  so,  &c.  {as  in  first  count). 

Final  count. 

And  the  grand  inquest  aforesaid,  inquiring  as  aforesaid,  on 
their  oaths  and  affirmations  aforesaid,  do  further  present,  that 
after  the  commission  of  the  crimes  so  as  aforesaid  committed  on 
the  high  seas,  and  out  of  the  jurisdiction  of  any  particular  state, 
to  wit,  on  the  day  of  the  said  A.  W.  H.,  the  offender 

aforesaid,  was  apprehended  in  the  Eastern  District  of  Pennsyl- 
vania, (a) 

(183)  Misdemeanor  in  concealing  death  of  bastard  child  hy  casting 
it  in  a  ivell,  binder  the  Pennsylvania  statute. (w^ 

And  the  inquest  aforesaid,  on  their  oaths  and  affirmations 
aforesaid,  do  further  present,  that  the  said  R.  P.,  on  the   said 

(a)  See  ante,  17,  18  ;  post,  239,  note. 

(«;)  See  generally  under  this  head,  Wh.  C.  L.  as  follows  :  — 

A.  Statutes. 

Massachusetts. 

Concealing  death  of  any  infant,  which  would  otherwise  have  been 

a  bastard,  §  1231. 
Indictment  for  the  murder  of  an  infant  bastard  child,  §  1232. 
Pennsylvania. 

Concealing  death  of  infant  bastard  child,  whether  it  was  born  alive 

or  not,  §  1233. 
Concealment  of  death  of  child,  not  conclusive  evidence  to  convict 
party  of  murder,  §  1234. 

B.  Decisions  under  English  and  American  Statutes,  §  1235. 

It  is  not  necessary  in  Pennsylvania  to  set  forth  in  what  manner  or  by  what 
arts  the  mother  endeavored  to  conceal  the  death  of  the  child.  Boyle  v.  Com.,  2 
S.  &  E,.  40.  It  is  a  fatal  objection  that  an  indictment  for  concealing  the  death, 
does  not  directly  aver  the  death  of  the  child.  It  is  not  sufficient  to  aver  that  the 
defendant  '•  did  endeavor  privately  to  conceal  the  death  of  the  said  female  bas- 
tard child."  Douglas  v.  Com.,  8  Watts,  535;  Com.  v.  Clark,  2  Ash.  105, 
Whether  the  child  be  born  dead  or  alive  would  seem  to  be  immaterial.    Douglas 

201 


(183)  OFFENCES    AGAINST   THE   PERSON. 

day  of  in  the  year  aforesaid,  being  big  with  a  male 

child,  the  same  day  and  year,  in  the  county  aforesaid,  by  the  provi- 
dence of  God  did  bring  forth  the  said  child  of  the  body  of  her 
the  said  R.,  alone  and  in  secret,  which  said  male  child  if  it  were 
born  alive  would  by  the  laws  of  this  commonwealth  be  a  bastard; 

V.  Com.,  8  Watts,  535,  Rogers,  J.  See  R.  v.  Coxhead,  1  C.  &  K.  623.  The 
concealment  is  not  conclusive  evidence  of  the  fact,  unless  the  circumstances  at- 
tending it  are  sufficient  to  satisfy  the  jury  that  the  mother  did  wilfully  and 
maliciously  destroy  the  child.     Penn.  v.  M'Kee,  Add.  2. 

Under  the  North  Carolina  act  against  the  mother,  for  concealing  the  birth  of 
her  bastard  child  it  is  said  that  it  is  not  incumbent  on  the  prosecution  to  show 
that  the  child  was  born  alive,  but  the  burden  of  showing  the  contrary  is  on  the 
part  of  the  accused  (see  R.  v.  Douglas,  1  Mood.  C.  C.  462)  ;  and  that  the  corpus 
delicti  is  concealing  the  death  of  a  being  upon  whom  the  crime  of  murder  would 
have  been  committed ;  and,  therefore,  if  the  child  be  born  dead,  concealment  is 
not  an  offence  against  the  statute.  State  v.  Joiner,  4  Hawks,  350.  A  mother 
having  caused  the  body  of  her  child  to  be  buried  privately,  her  object  being  to 
conceal  its  birth,  it  was  held,  under  the  stat.  43  Geo.  III.  c.  58,  and  9  Geo.  IV. 
c.  31,  s.  14,  from  which  the  American  acts  differ  but  little,  that  the  fact  of  her 
having  previously  acknowledged  the  birth  to  several  persons,  did  not  prevent  her 
conviction  of  the  concealment.  R.  v.  Douglas,  1  Mood.  C.  C.  462.  Where  the 
woman  was  delivered  of  a  child,  the  dead  body  of  which  was  found  in  a  bed 
amongst  the  feathers,  but  there  was  no  evidence  to  show  who  put  it  there, 
and  it  appeared  that  the  mother  had  sent  for  a  surgeon  at  the  time  of  her  con- 
finement, and  had  prepared  child's  clothes,  the  judge  directed  an  acquittal 
of  the  charge  for  endeavoring  to  conceal  the  birth.  R.  v.  Higley,  4  C.  &  P. 
366.  Where  a  woman  delivered  of  a  seven  months'  child,  tlirew  it  down 
the  privy,  and  it  appeared  that  another  woman,  charged  as  an  accomplice, 
knew  of  the  birth ;  upon  an  indictment  for  murder  against  the  two,  the  jury 
found  the  mother  guilty  of  the  concealm'ent ;  and  the  point  being  saved  upon 
a  doubt,  whether  it  was  a  case  within  the  stat.  43  Geo.  III.  c.  58,  as  a  second 
person  knew  of  the  birth,  the  judges  held  that  the  act  of  throwing  the  child 
down  the  privy  was  evidence  of  the  endeavor  to  conceal  the  birth,  and  that  the 
conviction  was  right.  R.  v.  Cornwall,  R.  &  R.  336.  An  indictment  on  stat.  9 
Geo.  IV.  c.  31,  s.  14,  for  endeavoring  to  conceal  the  birth  of  a  dead  child,  need 
not  state  whether  the  child  died  before,  at,  or  after  its  birth.  Reg.  v.  Coxhead, 
1  C.  &  K.  623.  An  indictment  which  charged  that  the  defendant  did  cast  and 
throw  the  dead  body  of  the  child  into  soil  in  a  certain  privy,  "  and  did  thereby, 
then  and  there,  unlawfully  dispose  of  the  dead  body  of  the  said  child,  and  en- 
deavor to  conceal  the  birth  thereof,"  sufficiently  charges  the  endeavor  to  conceal 
the  birth,  as  the  word  "  thereby  "  applies  to  the  endeavor,  as  well  as  to  the  dis- 
posing of  the  dead  body.     R.  v.  Douglas,  1  Mood.  C.  C.  462. 

By  the  act  of  22d  April,  1794  (Purd.  532),  the  grand  jury  may  join  a  count 
for  murder  with  a  count  for  concealment.     For  forms  for  "Murder"  in  such 
cases,  see  ante,  157-159. 
202 


HOMICIDE.  (185) 

and  that  the  said  R.  afterwards,  to  wit,  on  the  day  of 

in  the  year  aforesaid,  as  soon  as  the  said  male  child  was  born, 
did  endeavor  privately  to  conceal  the  death  of  the  said  child,  and 
did  take  the  said  child  into  both  the  hands  of  her  the  said  R., 
and  did  then  and  there  wilfully  and  privately  cast  and  throw  the 
said  child  into  and  down  the  well  of  a  certain  privy  there  situate, 
so  that  it  might  not  come  to  light,  whether  the  said  child  was 
born  dead  or  alive,  or  whether  it  were  murdered  or  not,  contrary, 
&c.,  and  against,  &c. 

(184)  Same  where  means  of  concealment  are  not  stated.Qc) 

That  J.  B.,  late  of  the  county  aforesaid,  spinster,  on,  &c.,  at, 
&c.,  being  big  with  a  certain  female  infant,  the  same  day  and 
year,  at  the  county  aforesaid,  did  bring  forth  the  said  infant  of 
*the  body  of  her  the  said  A.,  alone  and  in  secret,  which  same 
infant,  so  being  brought  forth  alive,  was  by  the  laws  of  this  com- 
monwealth a  bastard  ;  and  that  the  said  S,  B.  afterwards,  to  wit, 
the  same  day  and  year  aforesaid  (the  said  female  infant  having 
on  the  day  and  year  last  aforesaid,  at  the  township  and  county 
aforesaid,  died),  did  endeavor  privately  to  conceal  the  death  of 
the  said  female  infant,  so  that  it  might  not  come  to  light  whether 
the  said  female  infant  was  born  dead  or  alive,  or  whether  the 
said  female  infant  was  murdered  or  not,  contrary,  &c.,  and 
against,  &c. 

(185)  Endeavor  to  conceal  the  birth  of  dead  child,  under  the  Eng- 
lish statute. Qj^ 

That  A.  C,  late  of,  &c.,  on,  &c.,  at,  &c.,  being  big  with  a  cer- 
tain female  child,  afterwards,  to  wit,  on  the  same  day,  and  in  the 
year  aforesaid,  in  the  parish  aforesaid,  in  the  county  aforesaid,  of 
the  said  child  was  delivered. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  A.  C.  afterwards,  to  wit,  on  the  same  day, 
and  in  the  year  aforesaid,  with  force  and  arms,  at  the  parish 

(x)  See  Boyle  v.  Com.,  2  S.  &  R.  40,  where  this  count  was  sustained.  The 
usual  form,  however,  is  to  charge  the  object  of  the  offence  as  a  "  child,"  and  not 
an  "  infant,"  and  I  would  add  another  count  so  stating  it,  notwithstanding  the 
sanction  by  the  Supreme  Court  of  the  form  in  the  text. 

(y)  R.  V.  Coxhead,  1  C.  &  K.  623. 

203 


(185)  OFFENCES   AGAINST   THE   PERSON. 

aforesaid,  in  the  county  aforesaid,  with  both  her  hands,  unlaw- 
fully did  cast  and  throw  the  dead  body  of  the  said  child  into  and 
amongst  the  soil,  waters,  and  filth  then  being  in  a  certain  privy 
there,  and  did  thereby  then  and  there  unlawfully  dispose  of  the 
dead  body  of  the  said  child,  and  endeavor  to  conceal  the  birth 
thereof,  against,  &c.,  and  against,  &c. 
204 


RAPE. 


CHAPTER  11. 

RAPE.  (2) 

(186)  General  form. 

(187)  For  carnally  knowing  and  abusing  a  woman  child  under  the  age 

often  years-     Mass.  stat.  1852,  ch.  259,  §  2. 

(188)  Rape.     Upon  a  female  other  than  a  daughter  or  a  sister  of  the 

defendant,  under  Ohio  stat.  p.  48,  §  2. 

(189)  Rape.     Upon  a  daughter  or  sister  of  the  defendant,  under  Ohio 

stat.  p.  48,  §  1. 

(190)  Rape.     Abusing  female  child  with  her  consent,  under  Ohio  stat. 

p.  48,  §  2. 

[For  assaults  with  intent  to  ravish,  see  253,  &c.] 

(z)  See  Wh.  C.  L.  as  follows  :  — 

A.  Statutes. 

United  States! 

Rape  on  high  seas,  §  1124. 

Entering  vessel  with  intent  to  commit  rape,  §  1125. 
Massachusetts. 

Rape  on  female  of  ten  or  more,  and  carnal  knowledge  of  child  un- 
der ten,  §  1126. 
New  York. 

Rape  on  female  of  ten  years  or  more,  or  carnal  knowledge  of  child 
under  ten,  §  1127. 

Rape  through  stupefaction,  §  1128. 
Pennsylvania. 

Rape  and  its  punishment,  §  1129. 
Virginia. 

Rape  by  white  person  on  female  often  years  or  more,  §  1130. 
Ohio. 

Rape  upon  daughter  or  sister,  §  1131. 

Rape  on  woman  of  ten  or  more,  or  carnal  knowledge  of  female 
under  ten,  §  1132. 

Carnal  knowledge  of  insane  woman,  §  1133. 

B.  Rape  at  Common  Law. 

I.  Defendant s  competency  to  commit  offence,  §  1134. 
1st.  Infancy,  §  1134. 
2d.   Impotency,  §  1135. 
•  3d.  Relationship,  §  1136. 

n.  In  what  carnal  knowledge  consists,  §  1137. 

205 


(186)  OFFENCES    AGAINST   THE    PERSON. 

(186)    General  Form. 
That  J.  S.,  late  of  the  parish  of  B.,  in  the  County  of  M.,  la- 
borer,(a)  on  the  day  of  &c.,  with  force  and  arms,(a^) 

at  the  parish  aforesaid,  in  the  county  aforesaid,  in  and  upon  one 
A.  N.,  {h)  in  the  peace  of  God  and  the  said  state,  then  and  there 
being,  violently  and  feloniously  did  nnake  an  assault,(c)  and  her 
the  said  A.  N.,  then  and  there  forcibly  and  against  her  will,((i) 
feloniously  did  ravish  and  carnally  kno\v,(e)  against,  &c.  (Cow- 
in.  In  what  want  of  tcill  consists,  §  1141. 

1st.  Acquiescence  obtained  by  fear,  §  1142. 

2d.    Acquiescence  obtained  by  ignorance  of  nature  of  act,  §  1143. 
3d.    Acquiescence  obtained  by  mistalie  or  imposition  as  to  the  per- 
son, §  1144. 
4tli.  Acquiescence  obtained  by  artificial  stupefaction,  §  1146. 
IV.  Party  aggrieved  as  a  witness,  §  1149. 

1st.  Her  admissibility  and  weight,  §  1149. 

2d.    How  far  she  may  be  corroborated  by  her  own  statements, 

§  1150. 
3d.    How  she  may  be  impeached,  §  1151. 
V.  Pleading,  §  1153. 

VI.  Assaults  with  intent  to  ravish,  §  1155. 
(a)  Age  need  not  be  stated.     People  v.  Ah  Yek,  29  Cal.  575. 
(fli)  These  words  are  surplusage.     See^Wh.^C.  L.  §  403  ;  ante,  2,  note  (g). 
(6)  It  is  not  necessary  to  aver  A.  N.  to  have  been  a  woman  (State  v.  Far- 
mer, 4  Iredell,  224)  ;  nor  that  she  was  over  the  age  limited  by  the  statute  for 
infancy.     lb. ;  Com.  v.  Scannel,  11  Cush.  (Mass.),  547;  8  Gray  (Mass.),  489. 

(c)  An  indictment  charging  that  the  defendant  in  and  upon  A.  B.  "  feloni- 
ously and  violently  did  make  (omitting  the  words  '  an  assault '),  and  her  the 
said  A.  B.  then  and  there,  against  her  will,  violently  and  feloniously  did  ravish 
and  carnally  know,"  &c.,  was  held  sufficient  in  ai-rest  of  judgment.  Reg.  v.  Allen, 
1  Mood.  C.  C.  179;  9  C.  &  P.  521. 

((/)  Though  these  words  used  to  be  considered  essential  (State  v.  Jim,  1  Dev, 
142),  yet  it  has  been  held  that  the  clause  might  be  supplied  by  "  feloniously  did 
ravish  and  carnally  know  her."  Harman  v.  Com.,  12  S.  &  R.  C9  ;  Com.  v.  Ben- 
nett, 2  Va.  Cases,  235;  ^Yh.  C.  L.  §§  1153,  1154. 

(e)  The  omission  of  the  ^'^  cnrnaliter  cognovit"  makes  the  indictment  bad  on 
demurrer,  but,  as  it  seems,  not  after  verdict,  under  the  late  English  statute  of 
jeofails.     R.  v.  Warren,  1  Euss.  686. 

A  general  conviction  of  defendant,  charged  both  as  principal  in  the  first  de- 
gree, and  as  an  aider  and  abettor  of  other  men  in  rape,  is  valid  on  the  count 
charging  him  as  principal.  And  on  such  an  indictment,  evidence  may  be  given 
of  several  rapes  on  the  same  woman,  at  the  same  time,  by  the  defendant  an(i 
other  men,  each  assisting  the  other  in  tui-n,  without  putting  the  prosecutor  to 
206 


RAPE.  (189) 

chide  as  in  book  1,  chapter  3.  Add  a  count  for  assault  with  intent 
to  ravish.){f) 

(187)  For  carnally  knowing  and  abusing  a  woman  child  under  the 

age  of  ten  years.(^g^ 

The  jurors,  &;c.,  upon  their  oath  present,  that  C.  D.,  late  of  B., 
in  the  County  of  S.,  laborer,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  with  force  and  arms,  at  B.  aforesaid,  in  the 

county  aforesaid,  in  and  upon  one  E.  F.,  a  woman  child,  under 
the  age  of  ten  years,  to  wit,  of  the  age  of  nine  years,  feloniously 
did  make  an  assault,  and  her  the  said  E.  F.  then  and  there  felo- 
niously did  unlawfully  and  carnally  know  and  abuse,  against  the 
peace  of  said  commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

(188)  Rape  upon  a  feynale  other  than  a  daughter  or  sister  of  the 

defendant,  under  Ohio  /Stat.  2)-  48,  §  2. 

That  A.  B.,  on  the  fifth  day  of  June,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  forty- nine,  in  the  County  of 
Cuyahoga  aforesaid,  in  and  upon  M.  N.,  then  and  there  being, 
unlawfully,  violently,  and  feloniously  did  make  an  assault,  and 
her  the  said  M.  N.,  then  and  there  forcibly  and  against  her  will, 
feloniously  did  ravish  and  carnally  know,  she  the  said  M.  N. 
then  and  there  not  being  the  daughter  or  sister  of  the  said  A.  B., 
contrary,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(189)  Hape  upon  a  daughter  or  sister  of  the  defendant,  under  Ohio 

Stat.  jy.  48,  §'l. 

That  A.  B.,  on  the  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  in  the  County  of 

elect  on  which  count  to  proceed.  R.  v.  Folkcs,  1  Mood.  C.  C.  344  ;  R.  v.  Gray, 
7  C.  &  P.  164. 

An  indictment  is  good  which  charges  that  A.  committed  a  rape,  and  that  B. 
was  present  aiding  and  abetting  him  in  the  commission  of  the  felony ;  for  the 
party  aiding  may  be  charged  either  as  he  was  in  law,  a  principal  in  the  first  de- 
gree, or  as  he  was  in  fact,  a  principal  in  the  second  degree.  R.  v.  Crisham,  C. 
&M.  187. 

(/)  See  2,  note  (/),  as  to  the  propriety  of  such  a  joinder ;  and  see  also  Wh. 
C.  L.  §§  1153-1155. 

(g)  Tr.  &  H.  Prec  Mass.  St.  1852,  ch.  259,  §  2. 

•207 


(190)  OFFENCES    AGA'INST   THE    PERSON. 

aforesaid,  in  and  upon  one  M.  N.,  then  and  there  being,  unlaw- 
fully, violently,  and  feloniously  did  make  an  assault,  and  her  the 
said  M.  N.,  then  and  there  forcibly  and  against  her  will,  feloni- 
ously did  ravish  and  carnally  know,  she  the  said  M.  N.  then  and 
there  being  the  daughter  {or  sister,  as  the  case  maij  be)  of  the  said 
A.  B.,  and  the  said  A.  B.  then  and  there  well  knowing  the  said 
M.  N.  to  be  his  daughter  {or  sister),  contrary,  &c.  {Conclude  as 
in  book  1,  chapter  3.) 

(190)  Rape.     Abusing  female  child  with  her  consent,  under  Ohio 

Stat.  p.  48,  §  2. 

That  A.  B.,  on  the  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  in  the  County  of 

aforesaid,  being  then  and  there  a  male  person  of  the  age  of  sev- 
enteen years  and  upward,  in  and  upon  one  M.  N.,  a  female  child, 
under  the  age  of  ten  years,  to  wit,  of  the  age  of  eight  years,  then 
and  there  being,  unlawfully,  forcibly,  and  feloniously  did  make 
an  assault,  and  her  the  said  M.  N.  then  and  there  unlawfully  and 
feloniously  did  carnally  know  and  abuse,  with  her  consent,  con- 
trary, &c.     {Conclude  as  in  book  1,  chapter  3.)(//) 

(A)  WaiTcn,  C.  L.  68. 
208 


SODOMY.  (191) 


CHAPTER  III. 

SODOMY.(a) 

(191)    General  form. 

That  A.  B.,  on,  &c.,  at,  &c.,  in  and  upon  T.  L.,  then  and  there 
being,  feloniously  did  make  an  assault,  and  then  and  there  felo- 
niously, wickedly,  diabolically,  and  against  the  order  of  nature, 
had  a  venereal  affair(a^)  with  the  said  T.  L.,  and  then  and  there 
carnally  knew  the  said  T.  L.,  and  then  and  there  feloniously, 
wickedly,  and  diabolically,  and  against  the  order  of  nature,  with 
the  said  T.  L.  did  commit  and  perpetrate  that  detestable  and 
abominable  crime  of  buggery(5)  (not  to  be  named  among  Chris- 
tians), to  the  great  displeasure  of  Almighty  God,  to  the  great 
scandal  of  all  human  kind,  against,  &c.  ( Conclude  as  in  book  1, 
chapter  3.) 

(a)  Stark.  C.  P.  434.     See  Wh.  C.  L.  as  follows  :  — 

A.  Statutes. 

Massachusetts,  §  1157. 
New  York,  §  1158. 
Pennsylvania,  §  1159. 
Virginia,  §  1160. 

B.  At  Common  Law. 

(ai)  "  Had  a  venereal  affair  "  is  not  essential.  Lambertson  v.  People,  5  Par- 
ker, C.  C.  200. 

(b)  This  word  is  essential.     Co.  Ent.  350;  Fost.  424;  Wh.  C.  L.  §  1191,  &c. 
VOL.  I.  — 14  209 


(192)  OFFENCES   AGAINST   THE   PERSON. 


CHAPTER   IV. 

MAYHEM,  (ai) 

(192)  Indictment  on  Coventry  Act,  22  and  23  Car.  II.,  c.  1,  for  felony,  by 

slitting  a  nose,  and  against  the  aider  and  abettor. 

(193)  Mayhem  by  slitting  the  nose,  under  the  Rev.  Stat.  Massachusetts,  ch. 

125,  §  10. 

(194)  Mayhem  by  cutting  out  one  of  the  testicles,  under  the  Pennsylvania 

statute. 

(195)  Against  principal  in  first  and  second  degree  for  mayhem  in  biting  off 

an  ear,  under  the  statute  of  Alabama. 

(196)  Biting  off  an  ear,  under  Rev.  Stat.  N.  C.  ch.  34,  §  48. 

(197)  Maliciously  breaking  prosecutor's  arm  with  intent  to  maim  him,  un- 

der the  Alabama  statute. 

(192)  Indictment  on  Coventry  Act,  22  and  23  Car.  II.  ch.  \,  for  fel- 
ony, hy  slitting  a  nose,  and  against  the  aider  and  abettor. {a) 

That  J.  W.,  late  of,  &c.,  laborer,  and  A.  C,  late  of,  &c.,  Esq., 
on,  &c.,  contriving  and  intending  one  E.  C.  to  maim  and  disfig- 

(ai)  See  Wh.  C.  L.  as  follows  :  — 

A.  Statutes. 

United  States. 

Cutting  ear,  tongue,  nose,  &c.,  or  limb,  on  the  high  seas,  or  abet- 
ting in  same,  §  1162. 
Massachusetts. 

Cutting  tongue,  eye,  ear,  lip,  limb,  &c.,  or  aiding  in  same,  §  1163. 
New  York. 

Cutting  tongue,  eye,  lijj,  or  limb,  &c.,  §  1164. 
Pennsylvania. 

Cutting  tongue,  eye,  nose,  or  limb,  or  pulling  out  eye,  §  1165. 

Punishment  for  the  same,  §  1166. 
Virginia. 

Shoot,  stab,  cut,  or  wound,  or  causing  bodily  injury,  with  intent  to 
maim,  disfigure,  disable,  or  kill,  §  1167. 

In  attempt  to  commit  felony,  unlawfully  shoot,  stab,  cut,  or  wound 
another  person,  §  1168. 

Unlawfully  shooting  at  another  person,  §  11 69. 
Ohio. 

Maiming  or  disfiguring  another  with  intent,  &c.,  §  1170. 

B.  Mayhem  at  Common  Law,  §1171. 

(a)   Chit.  C.  L.  vol.  3,  786.     Though  mayhem  is  still  an  offence  at  common 

210 


MAY  H  KM.  (192) 

iire,(?))  at,  &c.,  with  force  and  arms,  in  and  upon  the  said  E.  C, 
in  the  peace  of  God  and  the  said  state,  then  and  there  beii)g,  oij 
purpose,(c)  and  on  (or  "  of  their  ")  malice  aforethoughtj(c)  and  by 
lying  in  wait,  unlawfully  and  feloniously((^)  did  make  an  assault, 
and  the  said  J.  W,,  with  a  certain  iron  bill  of  the  value  of  one 
penny,  which  he  the  said  J.  W.  in  his  right  hand  then  and  there 
had  and  held,(e)  the  nose  of  the  said  E.  C,  on  purpose,  and  of 
his  malice  aforethought,  and  by  lying  in  wait,  then  and  there  un- 
lawfully and  feloniously(/)  did  slit,((/)  with  intention  the  said  E. 
C,  in  so  doing,  in  manner  aforesaid,  to  maim  and  disfigure  ;  and 
that  the  aforesaid  A.  C,  at  the  time  the  aforesaid  felony  by  the 
said  J.  W.,  in  manner  and  form  aforesaid,  was  done  and  com- 
mitted, to  wit,  on  the  said,  &c.,  at,  &c.,  with  force  and  arms,  on 

law,  and  as  such  is  the  subject  of  prosecutions  in  England,  there  are  few  prece- 
dents of  indictments  for  it  as  a  common  law  offence.  This  form  Avas  taken  by 
Mr.  Chitty  (3  C.  L.  786)  from  the  Cro.  C.  C.  264.  In  the  United  States,  how- 
ever, so  far  as  the  ground  is  unoccupied  by  statute,  the  common  law  remedy  re- 
mains, and  mayhem  may  still  be  treated  as  a  common  law  offence. 

(h)  The  intent  as  thus  laid  is  necessary.  1  East,  P.  C.  402.  See  ante,  2, 
note  (J). 

(c)  The  omission  of  these  words  would  be  unsafe.  1  East,  P.  C.  402  ;  Pcnn. 
V.  M'Birnie,  Add.  R.  28. 

(d)  This  is  requisite.  Hawk.  b.  2,  c.  23,  s.  18  ;  Chit.  C.  L.  786,  787.  See  post, 
note  (/). 

(e)  The  same  precision  necessary  as  in  murder.     Hawk.  b.  2,  c.  23,  s.  79. 
(_/)  In  England,  3  Chit.  C.  L.  786,  and  in  Pennsylvania,  the  practice  is  to 

charge  the  offence  as  a  felony ;  but  in  IMassachusetts,  Georgia,  and  Alabama,  it 
is  treated  as  a  misdemeanor.     See  Wh.  C.  L.  §  1174. 

"Every  indictment  for  maiming,  "/says  Mr.  Chitty  (3  C.  L.  787),  "though  at 
common  law,  must  charge  the  offence  to  have  been  done  feloniously,  because 
the  defendant  was  formerly  punished  with  loss  of  member."  Hawk.  b.  2,  c. 
23  s.  18.  The  term  inaheimavit  was  always  essential  foi'merly,  as  the  word 
maim  is  at  present.  lb.  s.  17  ;  Com.  v.  Newell,  7  Mass.  R.  245.  The  wound  should 
be  set  forth  with  the  same  degree  of  precision  as  in  cases  of  murder ;  and  a  similar 
conclusion  must  be  drawn,  that  so  the  defendant  did  feloniously  maim,  &c., 
though  this  will  not  supply  the  omission  of  either  of  these  words  in  the  previous 
description  of  the  violence.  1  East,  P.  C.  402.  In  case  of  indictment  on  the 
statute  of  Charles,  its  language  must  be  accurately  followed  ;  so  that  the  expres- 
sions on  purpose,  of  malice  aforethought,  and  by  lying  in  wait,  as  well  as  the  allega- 
tion that  the  act  was  done  with  intent  to  maim  and  disfgure,  are  material,  lb.  ; 
Penn.  v.  M'Birnie,  Add.  R.  28. 

((/)  The  w^ound  should  be  laid  with  the  same  precision  as  in  murder.  3  Chit. 
C.  L.  786. 

211 


(194)  OFFENCES   AGAINST   THE   PERSON. 

purpose,  and  of  his  malice  aforethought,  and  by  lying  in  wait, 
unlawfully  and  feloniously  was  present  (knowing  of  and  privy  to 
the  said  felony), (h)  aiding  and  abetting  the  said  J.  W.  in  the 
felony  aforesaid,  in  manner  and  form  aforesaid  done  and  com- 
mitted. And  so  the  jurors,  &c.,  do  say,(z)  that  the  said  J.  W. 
and  A.  C,  on  the  said,  &c.,  at,  &c.,  aforesaid,  with  force  and 
arms,  on  purpose,  and  of  their  malice  aforethought,  and  by  lying 
in  wait,  the  felony  aforesaid,  in  form  aforesaid,  unlawfully  and 
feloniously  did  do  and  commit,  and  each  of  them  did  do  and 
commit,  against,  &c.,  and  against,  &c. 

(193)  Mayhem  by  slitting  the  nose,  under  Rev.  Stat.  Mass.  ch.  125, 

§10. 

That  C.  D.,  late  of  B.  in  the  County  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  with  force  and  arms, 

at  B.  aforesaid,  in  the  county  aforesaid,  the  said  C.  D.  being  then 
and  there  armed  with  a  certain  dangerous  weapon,  to  wit,  a 
knife,  with  malicious  intent  the  said  J.  N.  then  and  there  to 
maim  and  disfigure,  in  and  upon  the  said  J.  N.  feloniously  did 
make  an  assault ;  and  that  the  said  C.  D.,  with  the  said  knife, 
the  nose  of  the  said  J.  N.  then  and  there  feloniously  and  ma- 
liciously did  cut  and  slit,  with  malicious  intent  then  and  there 
and  thereby,  in  manner  aforesaid,  the  said  J.  N.  then  and  there, 
to  maim  and  disfigure;  against,  &c.,  and  contrary,  &c.{j)  {Con- 
clude as  in  book  1,  chapter  3.) 

(194)  Mayhem  by  cutting  out  one  of  the  testicles,  under  the  Pennsyl- 
vania statute.(m) 

That  negro  T,,  late  of  the  said  county,  yeoman,  on  the  second 
day  of  May,  A.  D.  one  thousand  eight  hundred  and  six,  at  the 
county  aforesaid,  and  within  the  jurisdiction  of  this  court,  con- 
triving and  intending  one  T.  W.  to  maim  and  disfigure,  with 
force  and  arms,  in  and  upon  the  said  T.  W.,  in  the  peace  of  God 
and  the  commonwealth,  then  and  there  being,  feloniously,  volun- 

{K)  The  words  of  the  statute. 

(i)   This  conchision  is  necessary.     1  East,  P.  C,  402;  3  Chit.  C.  L.  786,  787. 
\j)  Tr.  &  H.  Free.  385.     See  Com.  v.  Newell,  7  Mass.  245. 
(in)  The  defendant  was  convicted  in  1806,  under  this  indictment,  in  the  Phil- 
adelphia Quarter  Sessions. 

212 


MAYHEM.  (194) 

tarily,  and  maliciously  did  make  aw  assault ;  and  the  said  negro 
T.,  with  a  certain  knife  of  the  value  of  ten  cents,  which  he  the 
said  negro  T.  in  his  right  hand  then  and  there  had  and  held,  on 
purpose,  and  of  his  malice  aforethought,  then  and  there,  unlaw- 
fully, voluntarily,  maliciously,  and  feloniously  did  cut  out,  muti- 
late, and  destroy  one  of  the  testicles,  to  wit,  the  left  testicle  of 
him  the  said  T.  W.,  with  intention  him  the  said  T.  W.,  in  so 
doing,  in  manner  aforesaid,  to  maim  and  disfigure ;  and  so  the 
jurors  aforesaid,  upon  their  oaths,  &c.,  aforesaid,  do  say,  that  the 
said  negro  T.,  on  the  said  day  of  in  the  year  aforesaid, 

at  the  county  aforesaid,  with  force  and  arms,  on  purpose,  and  of 
his  malice  aforethought,  the  offence  aforesaid,  in  manner  and  form 
aforesaid,  did  do  and  commit,  contrary,  &c.,  and  against,  &c.(n) 

(n)  In  an  early  indictment  in  Pennsylvania  (Resp.  v.  Langcake,  1  Yeates, 
415),  the  first  count  stated,  that  Langcake  contriving  and  intending  Jonathan 
Carmalt,  a  citizen  of  Pennsylvania,  to  maim  and  disfigure,  with  force  and  arms, 
&c.,  on  purpose  and  of  his  malice  aforethought,  and  by  lying  in  wait,  on  the 
13th  August,  1794,  at,  &c.,  unlawfully  and  feloniously  did  make  an  assault  on 
the  said  Jonathan  with  a  cart-whip,  of  the  value  of  Is.,  and  the  right  eye  of 
the  said  Jonathan  then  and  there  did  strike  and  put  out,  with  an  intent  in  so 
doing  to  maim  and  disfigure  him,  against  the  act  of  assembly,  &c.,  and  that 
Hook  was  then  and  there  present,  aiding  and  abetting  the  fact,  &c.,  against  the 
act,  &c. 

The  second  count  was  grounded  on  the  latter  part  of  the  6th  section  of  the 
act  of  22d  April,  1  794  (p.  601),  and  pursued  the  words  of  the  first  count,  leaving 
out  the  words  "  and  by  lying  in  wait,"  and  charging  the  fact  to  have  been  done 
"  voluntarily  and  maliciously,  and  of  purpose,"  both  against  the  principal  and 
accessary. 

The  third  count  stated,  that  Langcake  and  Hook,  contriving  to  maim  and 
disfigure  Jonathan  Carmalt,  in  the  peace  of  (Jod  and  of  the  commonwealth 
then  and  there  being,  the  said  Langcake  on  the  13th  August,  1794,  at,  &c., 
voluntarily,  wickedly,  maliciously,  unlawfully,  and  feloniously  did  assault  the 
said  Jonathan,  and  him  with  a  cart-whip,  which  he  in  his  right  hand  had 
and  held,  the  right  eye  of  the  said  Jonathan,  then  and  there  voluntarily, 
&c.,  did  strike  and  put  out,  with  intent  in  so  doing  to  maim  and  disfigure 
him,  and  that  Hook,  at  the  time  of  the  felony  by  Langcake  done  and  com- 
mitted, voluntarily,  &c.,  was  present  aiding  and  abetting  Langcake  in  the 
felony  aforesaid,  &c.,  concluding  as  in  mayhem  at  common  law,  against  the 
peace,  &c. 

"  The  first  clause  of  our  act  of  assembly  of  22d  April,  1784,  s.  6,  is  borrowed 
from  the  words  of  the  British  statute  of  22  and  23  Car.  H.  c.  1,  s.  7,  It  pursues 
the  same  language,  except  that  our  act  particularly  enumerates  the  cutting  off 
'  the  ear,'  and  mildly  varies  the  mode  of  punishment.     Under  that  statute,  com- 

213 


(195)  OFFENCES   AGAINST   THE    PERSON. 


I 


(195)  Against  principal  in  first  and  second  degree  for  mayhem  in 
biting  off  an  ear^  under  the  statute  of  Alabama,  (o^ 
That  W.  M.,  on,  &c.,  at,  &c,,  in  and  upon  one  W.  E.  W.,  in 
the  peace  of  the  said  State,  then  and  there  being,  did  make  an 

nionly  called  the  Coventry  Act,  it  has  been  adjudged  not  necessary  that  either 
the  malice  aforethought,  or  lying  in  wait,  should  be  expressly  proved  to  be  on 
purpose  to  maim  or  disfigure.  Leach's  case,  193.  And  also  that  he  who  intends 
to  do  this  kind  of  mischief  to  another,  and  hy  deliherately  watchinr/  an  opportu- 
nity, carries  that  intention  into  execution,  may  be  said  to  lie  in  wait  on  purpose. 
lb.  194;  Mills'  case. 

"  Under  the  first  clause  of  the  act  of  assembly,  no  intent  to  maim  or  disfigure 
in  a  particular  manner  is  necessary,  and  therefore  on  the  first  count  in  the  in- 
dictment, if  the  general  intent  is  established  to  the  satisfaction  of  the  jury,  their 
next  material  inquiries  will  be,  as  to  the  malice  and  lying  in  wait,  whether  the 
same  has  been  proved,  or  can  fairly  be  inferred  from  all  the  circumstances  which 
have  been  disclosed  in  evidence. 

"  The  second  clause  of  the  6th  section  of  the  act  goes  further  than  the  Cov- 
entry Act,  and  was  evidently  introduced  to  prevent  the  infamous  practice  of 
gouging.  The  words  are  very  comprehensive,  and  extend  to  pulling  out  or, 
putting  out  the  eye,  while  fighting  or  otherwise.  But  we  hold  it  necessary, 
in  order  to  convict  on  this  clause,  that  a  specific  intent  to  pull  out  or  put  out 
the  eye,  must  be  shown  to  the  satisfaction  of  the  jury.  We  apprehend  that 
the  evidence  will  scarcely  warrant  the  conviction  of  Langcake  on  the  second 
count;  and  though  Hook  has  behaved  himself  grossly  amiss  during  the  whole  trans- 
action, yet  he  cannot  properly  be  convicted  on  either  of  the  two  first  counts  in 
the  indictment. 

"  On  the  third  and  fourth  counts,  Langcake  is  admitted  by  his  counsel  to 
be  guilty,  and  perhaps  the  evidence  will  suffice  to  reach  Hook  on  these  two  last 
counts." 

Sentence  was  afterwards  pronounced  against  Langcake,  that  he  should  un- 
dergo a  confinement  in  the  jail  and  penitentiary  house  for  three  years,  the  one 
twelfth  part  to  be  in  the  solitary  cells  ;  to  pay  a  fine  of  $1,000,  whereof  three 
fourth  parts  to  be  for  the  use  of  Carmalt ;  and  give  security  for  his  good 
behavior  for  seven  years,  himself  in  £500,  and  two  sufficient  sureties  in  £250 
each,  and  pay  costs. 

(o)  State  V.  Absence,  4  Port.  397.  The  court  said  :  "  The  indictment  seems 
to  be  in  the  form  pointed  out  by  the  most  usual  and  correct  precedents,  and 
contains  only  one  count,  which  charges  Mosely  with  committing  the  act,  and 
Absence  with  being  present,  and  aiding  and  assisting. 

"It  is  objected,  however,  that  the  statute  having  declared  the  biting  off  of  an 
car  to  be  mayhem,  it  was  necessary  to  charge  the  individuals  indicted  with  this 
legal  conclusion.  Hawk.  vol.  1,  p.  107,  and  2  Hawk.  311,  are  relied  on  to  es- 
tablish this  position. 

"  It  is  admitted,  if  a  statute  adopt  a  common  law  offence  without  otherwise 

214 


MAYHEM.  (196) 

assault,  and  that  the  said  W.  M.,  the  right  ear  of  him  the  said 
W.  E.  W.,  then  and  there  on  purpose,  and  of  his  malice  afore- 
thought, unlawfully  did  bite  off.  And  the  jurors  aforesaid,  upon 
their  oaths  aforesaid,  do  further  present,  that  E.  A.,  late  of  the 
county  aforesaid,  in  the  county  aforesaid,  &c.,  with  force  and 
arms,  on  the  day  and  year  aforesaid,  unlawfully  and  on  purpose, 
and  of  his  malice  aforethought,  was  present,  aiding  and  abetting 
and  assisting  the  said  W.  M.  the  said  mayhem  to  do  and  com- 
mit, contrary,  &c.,  and  against,  &c. 

(196)  Biting  off  an  ear,  under  Rev.  Stat.  N.  0.  ch.  34,  §  48.  (p) 

That  defendant,  on,  &c.,  at,  &c.,  unlawfully,  and  on  purpose, 
did  bite  off  the  left  ear  of  one  J.  W.,  contrary,  &c. 

defining  the  crime,  all  the  common  law  requirements  should  be  followed  in  the 
indictment ;  thus  our  statutes  affix  the  punishment  of  death  to  murder  and  rape, 
without  attempting  to  define  the  crimes.  Here,  no  doubt,  the  terms  '  murdraoit ' 
and  'rapuW  would  be  essential;  but  when  a  statute  describes  a  particular  act 
or  acts  as  a  misdemeanor  or  crime  of  a  particular  grade,  it  is  not  necessary  in 
an  indictment,  after  charging  the  acts,  to  state  the  legal  conclusion,  that  they 
amount  to  the  misdemeanor  or  crime  of  the  grade  declared  by  statute,  because 
such  is  (he  conclusion  of  the  law  on  the  facts  alleged.  The  same  reason  is  con- 
ceived applicable  to  the  omission  of  the  word  '  feloniously.'  If  the  statute  had 
declared,  that  all  persons  Avho  should  be  guilty  of  the  crime  of  mayhem,  should 
be  punished  in  a  particular  manner,  without  attempting  to  further  define  the 
offence,  the  question  would  properly  arise  on  an  indictment  framed  under  such 
a  statute,  whether  it  Avas  necessary  to  allege  the  mayhem  to  have  been  done  felo- 
niously. 

"  It  is  sufficient  to  decide,  that  the  word  entering  into  no  part  of  the  defi- 
nition of  this  olFence,  as  created  by  the  statute,  it  was  properly  omitted  in  the 
indictment. 

"  It  is  further  urged,  that  there  is  no  siifficient  allegation  of  time  and  place,  so 
far  as  Absence  is  noticed  in  the  indictment. 

"  The  court  recognizes  the  authority  of  the  rule  requiring  an  averment  of 
time  and  place  to  each  substantive  fact  charged  in  the  indictment.  Arch.  C. 
P.  36.  But  the  indictment,  it  is  believed,  conforms  to  this  rule  with  the  utmost 
precision. 

"  It  follows,  as  the  consequence  of  these  views,  that  there  was  no  error  in  re- 
fusing to  arrest  the  judgment  in  the  court  below." 

(p)  State  V.  Girkin,  1  Iredell,  121.  Under  this  indictment  it  was  held,  that 
an  intent  to  disfigui'e  is  prima  facie  to  be  inferred  from  an  act  which  does  in  fact 
disfigure,  unless  that  presumption  be  repelled  by  evidence  on  the  part  of  the  ac- 
cused of  a  ditFcrent  intent,  or  at  least  of  the  absence  of  the  intent  mentioned  in 
the  statute.     It  is  not  necessary,  it  was  said,  in  an  indictment  under  this  statute, 

215 


(197)  OFFENCES  AGAINST  THE  PERSON. 

(197)  Maliciously  breaking  prosecutor's  arm  with  intent  to  maim 
him,  under  the  Alabama  statute.(^q) 
That  the  defendant,  with  force  and  arms,  in  and  upon  one  P. 
J.,  did  make  an  assault,  and  upon  the  left  arm  of  him  the  said 
P.  J.,  with  a  certain  stick,  which  he  the  said  defendant  then  and 
there  held  in  both  his  hands,  did  strike  and  break,  and  did  on 
purpose  and  of  malice  aforethought,  unlawfully  disable  the  said 
left  arm  of  him  the  said  P.  J.,  with  intent  him  the  said  P.  J.  then 
and  there  to  maim,  contrary,  &c.,  and  against,  &c.(r) 

to  prove  malice  aforethouglit,  or  a  preconceived  intention  to  commit  the  maim. 
To  constitute  a  maim  under  this  statute,  by  biting  off  an  ear,  it  is  not  nec- 
essary that  the  wliole  ear  should  be  bitten  off;  it  is  sufficient  if  a  part 
only  is  taken  off,  provided  enough  is  taken  off  to  alter  and  impair  the  natu- 
ral personal  appearance,  and  to  ordinary  observation  to  render  the  person  less 
comely. 

(g)  See  State  v.  Bailey,  8  Port.  472,  where  it  was  held,  that  where  the  act  of 
eighteen  hundred  and  seven  (Aik.  Dig.  102)  speaks  of  disabling  a  limb  or 
member,  a  permanent  injury  is  contemplated,  such  as  at  common  law  would 
constitute  mayhem ;  a  temporary  disabling  of  a  finger,  an  arm,  or  an  eye,  is  not 
sufficient  to  constitute  the  statutory  offence. 

(r)  A  demurrer  was  filed  to  the  indictment,  which  was  overruled,  and  upon 
a  plea  of  "  not  guilty  "  the  defendant  was  convicted,  and  the  sufficiency  of  the 
indictment  was  reserved  by  the  court  below  for  review. 

216 


ABDUCTION.  —  KIDNAPPING. 


CHAPTER   V. 

ABDUCTION  —  KIDNAPPING,  (a) 

(200)  Abduction  under  New  York  Rev.  Stat.  vol.  2,  p.  553,  §  25. 

(201)  Abduction  of  a  white  person,  under  Ohio  stat.  p.  51,  §  14. 

(202)  Attempt  to  carry  a  white  person  out  of  the  State,  under  Ohio  stat. 

p.  51,  §  14. 

(203)  Kidnapping.     Attempt  to  carry  off  a  black  person,  under  Ohio 

stat.  p.  51,  §  15. 

(a)  See  Wh.  C.  L.  as  follows :  — 
A.  Statutes. 

Massachusetts. 

Secretly  confining  or  imprisoning  any  other  person,  or  forcibly 

carrying  or  sending  such  person  out  of  State,  §  1176. 
Offences   mentioned   in   preceding  section — where  they  may  be 

tried,  §  1177. 
Fraudulently  enticing  or  taking  away  any  unmarried  woman  of 

chaste  life,  §  1178. 
Time  of  commencing  prosecutions,  §  1179. 
New  York. 

Compelling  a  woman  to  marry  a  man  by  force,  menace,  or  duress, 

§  1180. 
Taking  any  woman  unlawfully  with  intent  to  compel  her  by  force, 

&c.,  to  marry  him  or  other  person,  §  1181. 
Taking  away  any  female  child  under  fourteen  years,  from  her 

father,  mother,  guardian,  &c.,  §  1182. 
Forcibly  seizing  or  confining  any  person,  §  1183. 
Trial  of  offence  in  last  section,  §  1184. 

Consent  of  person  kidnapped  or  confined  no  defence,  §  1185. 
Necessary  after  fact,  to  kidnapping  or  confining,  §  1186. 
Selling  or  transferring  the  services  of   any  black,  who  has  been 

forcibly  taken  away,  §  1187. 
Where  offence  prohibited  in  last  section  may  be  tried,  §  1188. 
Forcibly  or  fraudulently  leading,  taking,  or  carrying  away,  any 

child  under  twelve  years,  §  1189. 
Exposing  child  with  intention  to  abandon  it,  §  1190. 
Abduction  of  female  under  twenty-five  years,  of  previously  chaste 

character,  §  1191. 
Pennsylvania. 

Attempt  to  seduce   or  carry  away  any   mulatto,  with  design  of 

selling,  &c.,  §  1192. 

217 


(201)  OFFENCES   AGAINST   THE    PERSON. 

(200)  Abduction  under  New  York  Rev.  Stat.  vol.  2,  p.  553,  §  25. 
That  T.  M.,  late  of  the  First  Ward  of  the  City  of  New  York, 
in  the  County  of  New  York  aforesaid,  laborer,  on,  &c.,  at  the 
ward,  city,  and  county  aforesaid,  with  force  and  arms,  in  and 
upon  one  J.  T.,  in  the  peace  of  God  and  of  the  said  people,  then 
and  there  being,  feloniously  did  make  an  assault,  and  her  the 
said  J.  T.  then  and  there  feloniously  did  take  against  her  will, 
with  the  intent  to  compel  her  by  force,  menace,  and  duress  to 
be  defiled,  and  other  wrongs  to  the  said  J.  T.  then  and  there  did, 
to  the  great  damage  of  the  said  J.  T.,  against,  &c.,  and  con- 
trary, &c. 

(201)  Abduction  of  a  white  person^  under  Ohio  Stat.  p.  51,  §  14.((?) 

That  A.  B.,  C.  D.,  and  E.  F.,  on  the  twenty-second  day  of  May, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty-four, 
in  the  County  of  Hamilton  aforesaid,  one  M.  N.,  a  white  person, 
then  and  there  being,  did  unlawfully,  fraudulently,  and  wickedly, 
and  without  any  lawful  warrant  or  authority  whatever,  then  and 
there  seize,  take,  steal,  and  kidnap,  and  him  the  said  M.  N.  then 
and  there  did  forcibly,  fraudulently,  and  against  his  will,  and 
without  his  consent,  carry  off"  out  of  this  State,  contrary,  &c. 
(  Conclude  as  in  book  1,  chapter  1.) 

Knowingly   selling,  transferring,   &c.,  any  mulatto  to  carry  out 

State,  §  1193. 
Punishment  of  same,  §  1194. 

Enticing  or  carrying  away  any  free  negro  or  mulatto,  &c.,  §  1195. 
Selling,  transferring,  or  assigning,  any  free  negro,  &c.,  for  the  pur- 
pose of  making  him  or  her  a  slave,  &c.,  §  1196. 
Virginia. 

Taking  or  detaining  a  white  female  against  her  will,  with  inten- 
tion of  marrying  or  defiling  her,  §  1197. 
Free  person  selling  a  free  person  as  a  slave,  §  1198. 
Ohio. 

Kidnapping  a  white  person,  §  1199. 
Kidnapping,  &c.,  negroes;  prohibited,  §  1200. 
Punishment,  &c.,  §  1204. 
B.  Offence  at  Common  Law. 
(c)  Warren's  C.  L.  70. 
218 


ABDUCTION. —  KIDNAPPING.  (203) 

(202)  Attempt  to  carry  a  white  person  out  of  the  State,  under  Ohio 

Stat.  p.  51,  §  U-id) 
That  A.  B.,  C.  D.,  and  E.  F.,  on  the  twenty-second  day  of  May, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty- 
four,  in  the  County  of  Hamilton  aforesaid,  one  M.  N.,  a  white 
person,  then  and  there  being,  did  forcibly,  fraudulently,  and  wick- 
edly, and  not  in  pursuance  of  any  law  of  this  State  arrest  and 
imprison,  with  an  intention  then  and  there  of  having  him  the 
said  M.  N.  carried  out  of  this  State  without  the  consent  of  him 
the  said  M.  N.,  and  against  his  will.  ( Conclude  as  in  book  1, 
chapter  1.) 

(203)  Kidnapping  —  Attempt   to   carry  off  a  black  person,  under 

Ohio  Stat.  p.  51,  §  15.(e) 

That  A.  B.,  C.  R,  E.  R,  G.  H.,  I.  J.,  and  K.  L.,  late  of  said 
county,  heretofore,  to  wit,  on  the  twenty-seventh  day  of  March, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty- 
six,  at  the  County  of  Franklin  aforesaid,  under  the  pretence  that 
M.  N.,  a  free  black  person  then  and  there  being,  was  then  and 
there  a  slave,  did  with  force  and  arms  and  by  violence,  fraud,  and 
deception,  seize  upon  the  said  M.  N.,  a  free  black  person,  then 
and  there  being,  and  did  then  and  there  keep  the  said  M.  N.,  a 
free  black  person  as  aforesaid,  in  restraint  and  confinement  for  a 
long  space  of  time,  to  wit,  three  hours,  with  intent  to  transport 
him  the  said  M.  N.  out  of  the  State  of  Ohio,  contrary,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(<i)  Warren's  C.  L.  70.  (e)  Warren's  C.  L.  70. 

219 


OFFENCES    AGAINST   THE   PERSON. 


CHAPTER  VI. 

ABORTION,  (a) 

(204)  Production  of  abortion  at  common  law.     First  count.     By  assault 

and  thrusting  an  instrument  in  the  prosecutor's  womb,  she  be- 
ing "  big,  quick,  and  pregnant." 

(205)  Second  count,  averring  prosecutrix  to  be  "  big  and  preg- 

nant." 

(206)  Third  count,  merely  averring  pregnancy  in  same. 

(207)  Assault  on  a  woman  with  quick  child,  so  that  the  child  was  brought 

forth  dead.     (At  common  law.) 

(208)  Against  A.  the  principal,  for  producing  an  abortion  by  using  an 

instrument  on  the  person  of  a  third  party,  and  B.  an  accessary 
before  the  fact,  under  the  English  statute. 

(209)  Administering  a  potion  at  common  law  with  the  intent  to  produce 

abortion. 

(210)  Producing  abortion  in  New  York,  2  R  S.  550,  551,  §  9,  2d  ed. 
(210^)   Same  in  Massachusetts. 

(211)  Administering  medicine  under  the  Indiana  statute,  with  intent  to 

produce  abortion. 

(212)  Attempt  to  procure  abortion  by  administering  a  drug,  under  Ohio 

statute. 

(a)   See  Wh.  C.  L.  as  follows  :  — 

A.  Statutes. 

Massachusetts. 

Procuring  the  miscarriage  of  a  woman,  §  1214. 
Advertising,  &c.,  for  the  purpose  of  informing  where  medicine,  &c., 
may  be  obtained  for  the  causing  of  miscarriage,  §  1215. 
New  York. 

Administering  to  woman  pregnant  with  quick  child,  any  medicine, 

&c.,  for  the  destroying  of  child,  §  1216. 
Administering  medicine,  &c.,  for  the  purpose  of  procuring  miscar- 
riage, §  1216. 
Solicitation  of  a  woman  for  purpose  of  producing  miscarriage, 
§  1217. 
Virginia,  see  §  923. 
Ohio. 

Administering  medicine,  &c.,  to  produce  abortion,  §  1218. 
Taking  life  of  pregnant  woman  or  an  unborn  child  —  shall  be 
guilty  of  misdemeanor,  §  1219. 

B.  Offence  at  Common  Law,  §§  1220-30. 

220 


ABORTION.  (204) 

(204)  Production  of  abortion  at  common  law.(ay) 

First  count.     By  assault  and  thrusting  an  instrument  in  the  prose- 
cutors' womb,  she  being  "  big,  quick,  and  pregnant^ 
That  W.  B.  T.,  late  of  the  said  county,  yeoman,  A.  D.  alias 
A.  F.,  late  of  the  said  county,  singlewoman,  and  —  F.,  late  of 

(a')  This  indictment,  containing  besides  two  counts  for  assault  and  battery, 
and  two  for  conspiracy,  was  removed  to  the  Supreme  Court  of  Pennsylvania, 
by  allocatur,  in  May,  1845,  and  was  there  met  with  a  special  demurrer,  as 
follows :  — 

"And  now,  July  8,  1845,  the  above  named  defendants  respectively,  to  wit, 
William  B.  Taylor  and  Ann  Ford  come  into  court,  and  for  a  plea  in  this  behalf 
say,  the  said  Ann  Ford  protesting  that  she  is  not  and  never  was  known  by  the 
name  of  Ann  Demain,  that  she  is  a  married  woman,  and  that  her  true  and  only 
name  is  Ann  Ford  ;  that  they  ought  not  and  cannot  be  called  upon  in  law  to 
plead  or  answer  to  the  above  bill  of  indictment,  because  they  in  fact  say, 

"  The  said  bill  of  indictment  is  informal  and  insufficient,  and  cannot  be  sup- 
ported in  law. 

"Because  they  state  and  set  forth  the  following  reasons  and  grounds  for  de- 
murrer, specially  to  the  said  bill  of  indictment,  to  wit :  — 

"1st.  The  name  of  Ford  is  connected  with  that  of  said  Taylor  and  Ann 
Ford,  without  other  name,  qualification,  or  addition  to  designate  tlie  man  in- 
tended. 

"  ■2d.  The  said  indictment  does  not  sufficiently  aver  the  fact  that  the  said  Su- 
sannah R.  Schoch,  therein  mentioned,  was  at  the  time  and  place  therein  stated, 
pregnant  and  quick  with  child,  which  said  child  was  destroyed  and  killed  in 
its  mother's  womb,  or  attempted  by  said  defendants  to  be  so  destroyed  and 
killed. 

"  3d.  The  said  indictment  contains  two  counts,  to  wit,  the  6th  and  8th,  which 
are  without  proper  conclusions,  and  are  therefore  nugatory. 

"  4th.  Counts  are  joined  in  said  indictment  for  producing  the  abortion  of  the 
child  therein  mentioned,  and  for  attempting  to  produce  it,  and  for  assault  and 
battery,  and  for  attempt  to  commit  said  assault  and  battery,  and  for  conspiring 
to  perpetrate  all  the  said  offences. 

"  5th.  The  said  indictment  includes  but  two  of  the  alleged  parties  to  the  con- 
spiracy charged,  to  wit,  the  said  Taylor  and  Ann  Ford,  the  name  of  Ford  fol- 
lowing it,  being  a  nullity ;  and  omits  the  name  of  Susannah  R.  Schoch,  the 
alleged  third  party,  through  whom,  and  by  sole  means  of  whose  agency  in  the 
transaction,  the  alleged  conspiracy  was  entered  into,  arranged,  and  carried  into 
effect,  or  attempted  to  be  carried  into  effect  by  the  other  parties,  the  said  Su- 
sannah R.  Schoch  being,  if  such  conspiracy  existed,  one  of  the  parties  concerned, 
and  the  only  medium  of  communication  and  combination  between  them,  and  as 
such  an  indispensable  party  to  be  charged  and  embraced  with  the  other  defend- 
ants in  said  indictment." 

221 


(204)  OFFENCES  AGAINST  THE  PERSON. 

the  said  county,  yeoman,  on,  &c.,  with  force  and  arms,  &c.,  at 
the  county  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 

Judgment  was  entered  for  the  commonwealth,  Sergeant  J.  delivering  the  fol- 
lowing opinion :  — 

"  We  see  nothing  in  any  of  the  points  taken  by  the  defendants  in  demurrer. 

"  1 .  This  exception  is  only  pleadable  in  abatement,  in  which  the  defendant 
must  give  a  better  name.     It  is  not  cause  of  demurrer. 

"  2.  The  indictment  is  in  proper  form,  and  sufficiently  avers  that  she  (the 
party  injured)  was  pregnant  and  quick  with  child,  which  was  destroyed  and 
killed,  &c. 

"  3.  This  exception  is  not  true  in  fact.  The  indictment  contains  but  seven 
counts,  with  the  usual  conclusions. 

"  4.  This  exception  is  not  cause  of  demurrer.  If  the  counts  are  improperly 
joined,  the  court  may  be  asked  to  interfere  before  the  trial,  and  put  the  com- 
monwealth to  its  election. 

"  5.  The  name  Ford  alone,  there  being  no  plea  in  abatement,  is  not  a  nullity ; 
and  as  to  inserting  Susannah  Schoch  as  a  party,  that  rests  with  the  prosecution. 
Two  or  more  may  be  indicted  for  a  conspiracy  with  others  not  parties."  See 
Com.  V.  Demain,  6  Pa.  L.  J.  29. 

It  will  be  observed  that  there  is  ambiguitj'  in  the  language  of  the  coiu't  in  over- 
ruling the  exception  as  to  quickness.  The  second  count  avers  merely  that  the 
prosecutor  is  "big  and  pregnant;"  the  court,  on  a  demurrer  pointing  particularly 
at  this  feature,  says  that  it  is  sufficiently  charged  that  the  prosecutor  was  "  big 
and  quick  "  with  child.  When  it  is  recollected,  however,  that  the  case  was  one 
of  those  which  under  the  act  of  April  11,  1845,  was  not  certified  by  the  court 
to  the  reporter  for  publication,  the  apparent  incongruity  may  be  explained  by 
treatinor  Judge  Sergeant's  opinion  as  indicating  the  conclusions  of  the  court  on 
points  submitted,  rather  than  their  reasoning  on  the  questions  involved.  One 
thing  is  clear,  and  that  is  that  the  defendants  were  compelled  to  answer  to  the 
second  count,  where  no  averment  of  quickness  was  introduced ;  and  as  far  as 
they  were  concerned,  the  question  was  settled.  Notwithstanding  the  ingenious 
commentary  on  this  case  by  Judge  Lewis,  in  his  late  valuable  and  instructive 
treatise  on  criminal  law  (Lewis'  C.  L.  13),  I  cannot  withhold  my  concun-ence 
from  the  marginal  abstract  given  by  the  editors  of  the  Law  Journal  in  reporting 
it,  viz.,  that  it  is  not  necessary  to  aver  quickness  on  the  part  of  the  mother,  but 
that  it  is  sufficient  to  set  forth  that  she  was  big  and  pregnant.  That  such  is  the 
common  law,  both  on  ground  of  principle  and  analogy,  there  is  strong  reason  to 
maintain.  In  Pennsylvania  the  matter  has  been  put  finally  to  rest  by  a  solemn 
decision  of  the  Sujjreme  Court  to  this  effi'.ct.  Mills  v.  Com.,  1  Harris,  631.  It 
is  true  that  the  Supreme  Court  of  Massachusetts  ruled  differently  in  two  in- 
stances (in  Com.  v.  Bangs,  9  Mass.  387,  and  in  Com.  v.  Parker,  9  Met.  263); 
and  that  in  the  latter  case  the  grave  and  anxious  examination  of  the  question 
entitles  the  judgment  of  the  court  to  the  greatest  weight.  But  the  positions 
taken  at  a  former  period  still  appear  to  me  to  have  a  preponderating  influence. 
"  There  is  no  doubt  that  at  common  law  the  destruction  of  an  infant  unborn  is  a 
high  misdemeanor,  and  at  an  early  period  it  seems  to  have  been  deemed  mur- 

222 


ABORTION. 


(204) 


in  and  upon  one  S.  R.  S.,  then  and  there  being  big,  pregnant, 
and  quick  with  child,  did  make  a  violent  assault,  and  her  the  said 

der.  1  Russ.  on  Cr.  671  ;  1  Ves.  8G  ;  3  Coke's  Inst.  50  ;  1  Hawk.  c.  13,  s.  16  ; 
1  Hale,  434  ;  1  East,  P.  C.  90  ;  3  Chit.  C.  L.  798.  If  the  child  dies  subse- 
quently to  birth,  from  wounds  received  in  the  womb,  it  is  clearly  homicide.  R. 
V.  Senior,  1  Mood.  C.  C.  346 ;  3  Inst.  50.  See  Wh.  C.  L.  §§  1220-30.  It  has 
been  said  that  it  is  not  an  indictable  offence  to  administer  a  drug  to  a  woman 
and  thereby  procure  an  abortion  of  a  child,  unless  the  mother  is  quick  with 
child.  Com.  V.  Bangs,  9  Mass.  387;  Com.  v.  Parker,  9  Met.  263;  State  v. 
Cooper,  2  Zabris.  57  ;  Smith  v.  State,  33  Maine,  48.  Though  such  a  distinction, 
it  is  submitted,  is  neither  in  accordance  with  the  result  of  medical  experience 
(Guy's  Med.  Juris,  tit.  Abortion;  1  Beck,  172);  nor  with  the  principles  of  com- 
mon law.  1  Russ.  on  Cr.  671  ;  1  Ves.  86;  3  Coke's  Inst.  50;  1  Hawk.  c.  13, 
s.  16  ;  Bracton,  1.  3,  c.  21.  The  civil  rights  of  an  infant  in  ventre  sn  mere, 
are  equally  respected  at  every  period  of  gestation ;  and  it  is  clear  that  no  mat- 
ter at  how  early  a  stage  he  may  be  ajipointed  executor  (Bac.  Ab.  tit.  In- 
fants) ;  is  capable  of  taking  as  legatee  (2  Vern.  710) ;  or  under  a  marriage 
settlement  (Doe  v.  Clark,  2  H.  Bl.  399;  2  Ves.  Jr.  673;  Thelluson  v.  Wood- 
ford, 4  Ves.  227)  ;  may  take  specifically  under  a  devise  (Fearne,  429)  ;  and 
may  obtain  an  injunction  to  stay  waste.  Smith  v.  Dufheld,  5  S.  &  R.  38 ;  2 
Vern.  710."  Wh.  C.  L.  §§  1220-30.  This  view  is  strengthened  by  the  pre- 
cedents of  Mr.  Chitty  (Chit.  C.  L.  799,  800),  in  which  the  allegation  of  quick- 
ness is  omitted. 

The  notion  that  a  man  is  not  accountable  for  destroying  a  child  before  it 
quickens,  arose  from  the  hypothesis  that  quickening  was  the  commencement  of 
vitality  with  it,  before  which  it  could  not  be  considered  as  existing.  This  "  ab- 
surd distinction,"  as  it  is  called  by  Dr.  Guy  (Med.  Jur.  133),  is  now  exploded 
in  medicine,  the  tact  being  considered  indisjDutable,  that  "  quickening  "  is  the 
incident,  not  the  inception  of  vitality.  This  view  is  clearly  expounded  by  Dr. 
Beck,  in  his  Med.  Jurisp.  vol.  1,  p.  173.  "The  motion  of  the  foetus,"  he  says, 
"  when  felt  by  the  mother,  is  called  quickening.  It  is  important  to  under- 
stand the  sense  attached  to  this  word  formerly,  and  at  the  present  day.  The 
ancient  opinion,  and  on  which  indeed  the  laws  of  some  countries  have  been 
founded,  was,  that  the  foetus  became  animated  at  this  period  —  that  it  acquired 
a  new  mode  of  existence.  This  is  altogether  abandoned.  The  foetus  is  cer- 
tainly, if  we  speak  physiologically,  as  much  a  living  being  immediately  after 
conception,  as  at  any  other  time  before  delivery  ;  and  its  future  progress  is  but 
the  development  and  increase  of  those  constituent  principles  which  it  then  re- 
ceived. The  next  theory  attached  to  the  term,  and  which  is  yet  to  be  found  in 
many  standard  works,  is,  that  from  the  increase  of  the  foetus,  its  motions,  which 
hitherto  had  been  feeble  and  imperfect,  now  are  of  sufficient  strength  to  commu- 
nicate a  sensible  impulse  to  the  adjacent  parts  of  the  mother.  In  this  sense, 
then,  quickening  implies  the  first  sensation  which  the  mother  has  of  the  motion 
of  the  child  which  she  had  conceived. 

"  A  far  more  rational,  and  undoubtedly  more  correct  opinion,  is  that  which 
considers  quickening  to  be  produced  by  the  impreg/iated  uterus  starting  suddenly 

223 


(204)  OFFENCES    AGAINST   THE  PERSON. 

S.  then  and  there  did  violently  bruise,  wound,  and  ill-treat,  so 
that  her  life  was  thereby  despaired  of;  and  a  certain  instrument, 

out  of  the  pelvis  into  the  abdominal  cavity.  This  explains  several  peculiarities 
attendant  on  the  phenomenon  in  question  —  the  variety  in  the  period  of  its 
occurrence  —  the  faintness  which  usually  accompanies  it,  owing  to  the  pressure 
bciu"-  removed  from  the  iliac  vessels,  and  the  blood  suddenly  rushing  to  them  ; 
and  the  distinctness  of  its  character,  differing,  as  all  mothers  assert,  from  any 
subsequent  motions  of  the  foetus.  Its  occasional  absence  in  some  females  is 
readily  accounted  for,  from  the  ascent  being  gradual  and  unobserved." 

The  true  meaning  of  quickening,  and  the  absurdity  of  the  doctrine  that  it  is 
the  inception  of  life,  is  pointedly  shown  by  Orfila,  in  the  recent  edition  of  his 
very  authoi-itative  treatise,  —  Traite  du  Medeciue  Legale ;  Paris,  1848  (vol.  i. 

p.  226)  :  — 

"  Chez  la  plupart  des  femmes  le  foetus  exerce  des  mouvemens  que  Ton  a  ap- 
peles  actifs :  c'est  particulierement  vers  la  fin  du  quatrieme  mois,  lorsque  les 
oro-anes  de  la  locomotion  jouissent  dejh  d'une  certaine  energie,  que  ces  mouve- 
mens sont  sensibles ;  ils  deviennent  quclquefois  si  forts  par  la  suite,  qu'on  les 
apercoit  meme  a  travers  les  vetemens,  et  que  la  femme  en  mt  reveillee  pendant 
la  nuit :  I'homme  de  I'art  parvient  souvent  h  les  provoquer  en  appliquant  sur  les 
parois  du  ventre  la  main  prealablement  trempee  dans  I'eau  froide.  Ce  signe  qui 
paraitrait  au  premier  abord  devoir  permettre  d'affirmer  que  la  femme  est  ou 
n'est  pas  enceinte,  presente  pourtant  beaucoup  d'incertitude ;  non  seulement  il 
v  a  des  femmes  qui  n'ont  senti  de  pareils  mouvemens  k  aucune  epoque  de  la 
erossesse,  mais  il  en  est  beaucoup  d'autres  chez  lesquelles  des  contractions  spas- 
modiques  de  I'uterus  et  des  intestins  simulaient  tellement  les  mouvemens  du 
foetus  qu'elles  se  disaient  enceintes." 

It  appears,  then,  that  quickening  is  a  mere  circumstance  in  the  physiological 
history  of  the  foetus,  which  indicates  neither  the  commencement  of  a  new  stage 
of  existence,  nor  an  advance  from  one  stage  to  another;  that  it  is  uncertain  in 
its  periods,  sometimes  coming  at  three  months,  sometimes  at  five,  sometimes  not 
at  all ;  and  that  it  is  dependent  so  entirely  upon  foreign  influences  as  even  to 
make  it  a  very  incorrect  index,  and  one  on  which  no  practitioner  can  depend,  of 
the  progress  of  pregnancy.  There  is  as  much  vitality,  in  a  physical  point  of 
view  on  one  side  of  quickening  as  on  the  other ;  and  in  a  social  and  a  moral 
point  of  view,  the  infant  is  as  much  entitled  to  protection,  and  society  is  as  likely 
to  be  injured  by  its  destruction,  a  week  before  it  quickens  as  a  week  afterwards. 
But  if  the  common  law,  in  making  foeticide  penal,  had  in  view  the  great  mischiefs 
which  would  result  from  even  its  qualified  toleration,  e.  g.,  the  removal  of  the 
chief  restraint  upon  illicit  intercourse,  and  the  shock  which  would  be  sustained 
thereby  by  the  institution  of  marriage  and  its  incidents  —  we  can  have  no  author- 
ity now  for  withdrawing  any  epoch  in  gestation  from  the  operation  of  the  prin- 
ciple. Certainly  the  restraints  upon  illicit  intercourse  are  equally  removed  ;  the 
inducements  to  marriage  are  equally  diminished  ;  the  delicacy  of  the  woman  is 
as  effectually  destroyed;  no  matter  what  may  be  the  period  chosen  for  the  oper- 
ation. Acting  under  these  views,  the  legislatures  of  Massachusetts  and  New 
York,  in  order  to  fill  up  the  supposed  gap,  passed  acts  making  ante-quickening 
224 


ABORTION.  (205) 

made  of  silver  or  other  metal,  in  the  shape  and  form  of  a  hook, 
up  and  into  the  womb  and  body  of  the  said  S.,  then  and  there 
violently,  wickedly,  and  inhumanly  did  force  and  thrust,  with  a 
wicked  intent,  to  cause  and  procure(a)  the  said  S.  R.  S.  to  mis- 
carry, abort,  and  to  bring  forth  the  said  child,  of  which  she  was 
big,  quick,  and  pregnant,  as  aforesaid,  dead,  and  to  kill  and  mur- 
der the  said  child,  by  reason  and  means  of  which  said  last  men- 
tioned premises,  the  said  child  was  killed  and  its  life  destroyed 
and  taken  away  in  its  mother's  womb  ;  and  she,  the  said  S.,  after- 
wards, to  wit,  on,  &c.,  miscarried  and  was  aborted  and  delivered 
of  the  said  child,  being  a  female  child,  and  being  at  the  time  of 
its  birth  dead,  to  the  great  injury  and  detriment  of  the  said  S., 
to  the  evil  example  of  all  others  in  like  manner  offending,  and 
against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(205)  Second  count,  averring  prosecutrix  to  he  "  hig  and  pregnant^ 
That  the  said  W.  B.  T.,  A.  D.  alias  A.  F.,  and  —  R,  after- 
wards, to  wit,  on  the  day  and  year  aforesaid,  at  the  county  afore- 
said, and  within  the  jurisdiction  of  the  said  court,  in  and  upon 
the  said  S.  R.  S.,  then  and  there  being  big  and  pregnant  with  a 
certain  other  child,  did  make  another  violent  assault,  and  a  cer- 
tain other  instrument,  made  of  silver  or  other  metal,  in  the  shape 
and  form  of  a  hook,  up  and  into  the  womb  and  body  of  the  said 
S.,  then  and  there  violently,  wickedly,  and  inhumanly  did  force 
and  thrust,  with  a  wicked  intent  to  cause  and  procure  the  said 
S.  to  miscarry,  and  to  bring  forth  the  said  child  of  which  she  was 
big  and  pregnant,  as  last  aforesaid,  dead,  by  reason  and  means 
of  which  said  last  mentioned  premises,  she  the  said  8.,  after- 
wards, to  wit,  on,  &c.,  miscarried,  and  was  delivered  of  the  said 
child,  being  a  female  child,  the  said  child  being  dead  at  the  time 
of  delivery,  to  the  great  injury  and  detriment  of  the  said  S.,  to 
the  evil  example  of  all  others  in  like  manner  offending,  and 
against,  &c.     {Conclude  as  in  book  1,  chapter  3.) 

foeticide  individually  penal.  If,  however,  as  has  been  argued,  no  such  gap  ex- 
ists, it  will  be  worth  while  for  the  courts  of  those  states  which  have  not  legis- 
lated on  the  subject,  to  consider  how  far  an  exploded  notion  in  physics  is  to  be 
allowed  to  suspend  the  operation  of  one  of  the  most  conservative  doctrines  of 
the  common  law. 

(a)  This  is  necessary  at  common  law,  and  under  the  statutes.     Sta 
1  Vroom  (N.  J,),  422. 

VOL.  I.  — 15  225 


(207)  OFFENCES   AGAINST   THE   PERSON. 

(206)  Third  county  merely  averring  pregnancy  in  same. 
That  the  said  W.  B.  T.,  A.  D.  alias  A.  F.,  and  —  R,  after- 
wards,  to  wit,  on  the  day  and  year  aforesaid,  at  the  county  afore- 
said, and  within  the  jurisdiction  of  the  said  court,  in  and  upon 
the  said  S.  R.  S.,  then  and  there  being  pregnant  with  a  certain 
other  child,  did  make  another  violent  assault,  and  a  certain  other 
instrument,  made  of  silver  or  other  metal,  in  the  shape  and  form 
of  a  hook,  up  and  into  the  womb  and  body  of  the  said  S.,  then 
and  there  violently,  wickedly,  and  inhumanly  did  force  and  thrust, 
with  a  wicked  intent,  to  wit,  to  cause  and  procure  the  said  S.  to 
miscarry  and  to  bring  forth  the  said  child  of  which  she  was  big 
and  pregnant,  as  last  aforesaid,  dead,  to  the  great  injury  and 
detriment  of  the  said  S.,  to  the  evil  example  of  all  others  in  like 
manner  offending,  and  against,  &c.(6)  ( Conclude  as  in  book  1, 
chapter  3.) 

(207)  Assault  on  a  woman  with  quick  child,  so  that  the  child  was 
brought  forth  dead.     {At  common  law.^^c') 

That  defendant,  on,  &c.,  at,  &c.,  in  and  upon  M.,  the  wife  of 
one  W.  E.,  then  and  there  being  big  with  a  quick  child,  did 
make  an  assault ;  and  her  the  said  M.,  then  and  there  did  beat, 
wound,  and  ill-treat,  so  that  her  life  was  greatly  despaired  of,  by 
reason  whereof  she  the  said  M.,  afterwards,  to  wit,  on,  &c.,  at, 
&c.,  did  bring  forth  the  said  child  dead,  and  other  wrongs  to  the 
said  M.  then  and  there  did,  against,  &c,  ( Conclude  as  in  book 
1,  chapter  3.)  , 

(6)  By  the  act  of  31st  May,  1781  (Purdon's  Digest,  531),  it  is  provided,  that 
"  if  any  person  or  persons  shall  counsel,  advise,  or  direct  such  woman  to  kill 
the  child  she  goes  with,  and  after  she  is  delivered  of  such  child  she  kills  it, 
every  such  person  so  advising  or  directing  shall  be  deemed  accessary  to  such 
murder,  and  shall  have  the  same  punishment  as  the  principal  shall  have."  Of 
course,  in  case  of  the  child  dying  after  birth,  the  misdemeanor  merges ;  and  this 
is  so  at  common  law.     Wh.  C.  L.  §  564. 

(c)  Stark.  C.  P.  429. 
226 


ABORTION.  (208) 

(208)  Against  A.  the  principal^  for  producing  an  abortion  hy  using 
an  instrument  on  the  person  of  a  third  party,  and  B.  an  ac- 
cessary before  the  fact,  under  the  Eyiglish  statute.(d) 

That  T.  A.,  late  of,  &c.,  on,  &c.,  at,  &c.,  feloniously,  unlaw- 
fully, and  maliciously  did  use  a  certain  instrument,  the  name  of 
which  instrument  is  to  the  jurors  unknown,  by  then  and  there 
forcing,  thrusting,  and  inserting  the  said  instrument  into  the  pri- 
vate parts  of  H.  L.,  now  known  by  the  name  of  H.  E.,  with 
intent  in  so  doing,  then  and  there  and  thereby  to  procure  the 
miscarriage  of  the  said  H.  L.,  now  known  by  the  name  of  H.  E., 
against,  &c.,  and  against,  &c.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  T.  J.  F.,  late  of,  &c., 
before  the  committing  of  the  felony  by  the  said  T.  A.,  as  afore- 
said, to  wit,  on,  &c.,  at,  &c.,  feloniously  did  procure,  counsel,  and 
command  the  said  T.  A.  the  felony  aforesaid,  in  manner  and 

(rf)  R.  V.  Ashmall,  9  C.  &  P.  236.  At  the  trial,  the  defendant,  Ashmall,  was 
called,  but  did  not  appear ;  but  Fay,  who  had  been  on  bail,  appeared.  Godson, 
for  the  defendant  Fay  :  "  I  submit  that  my  client  is  not  compellable  to  plead  to 
this  indictment.  He  is  indicted  as  an  accessary,  and  as  an  accessary  only. 
Formerly  an  accessary  before  the  fact  could  in  no  case  be  brought  to  trial  with- 
out his  principal,  except  after  the  conviction  of  his  principal,  or  by  his  own  con- 
sent. But  now,  by  the  stat.  7  Geo.  IV.  c.  64,  s.  9,  accessaries  before  the  fact 
may  be  tried  in  either  one  of  three  modes  :  1st,  with  the  principal;  2d,  after 
the  conviction  of  the  principal  felon  ;  or,  3d,  for  a  substantive  felony.  This 
indictment  is  not  for  a  substantive  felony,  because  everything  charged  against 
Mr.  Fay  is  charged  as  having  been  done  accessarily  to  Ashmall ;  and  what  shows 
decisively  that  Mr.  Fay  is  charged  as  an  accessary  only,  is,  that  if  Mr.  Ashmall 
was  acquitted  on  this  indictment.  Fay  must  be  acquitted  also  as  a  legal  conse- 
quence." Carrington,  on  the  same  side  :  "  At  the  time  of  the  passing  of  the  act, 
7  Geo.  IV.  c.  64,  I  had  occasion  to  compare  it  with  all  the  previous  enactment? 
on  the  subject,  and  I  believe  I  am  correct  in  stating  that  the  only  alteration  in 
the  law  then  made,  as  to  the  trial  of  accessaries  without  and  before  the  convic- 
tion of  the  principal,  was  by  the  provisions  relating  to  the  accessary  being  in- 
dicted for  a  substantive  felony.  I  submit,  also,  that  an  indictment  for  a  substan- 
tive felony  must  be  so  framed  as  not  to  depend  on  the  conviction  or  acquittal  of 
any  person,  except  the  party  who  is  charged  with  the  substantive  felony  ;  indeed, 
the  ordinary  counts  for  the  substantive  felony  of  being  accessary  do  not  even 
name  the  principal,  but  merely  state  him  to  be  '  a  certain  evil  disposed  per- 
son.' "  Gurney,  B.  (after  conferring  with  Fatteson,  J.)  :  "  My  learned  brother 
Patteson  concurs  with  me  in  opinion  that  Mr.  Fay  is  not  compellable  to  plead 
to  this  indictment  at  present.  There  might  have  been  an  indictment  against 
him  for  a  substantive  felony,  but  this  is  not  so." 

227 


(210)  OFFENCES    AGAINST   THE   PERSON. 

form  aforesaid,  to  commit,  against,  &c.,  and  against,  &c.  ( Con- 
clude as  in  book  1,  chapter  3.) 

(209)  Administering  a  potion  at  common  law,  with  intent  to  produce 

abortion,  (e) 

That  A.  B.,  of  in  the  County  of  laborer,  on,  &c., 

at  B.  aforesaid,  in  the  county  aforesaid,  did,  unlawfully  and  wick- 
edly, administer  to,  and  cause  to  be  administered  to  and  taken 
by  one  C.  D.,  singiewoman,  she  the  said  C.  D.  being  then  and 
there  pregnant  and  quick  with  child,  divers  quantities,  to  wit, 
four  ounces,  of  a  certain  noxious,  pernicious,  and  destructive  sub- 
stance called  savin  ;{e^)  with  intent  thereby  to  cause  and  procure 
the  miscarriage  of  the  said  C.  D.,  and  the  premature  birth  of  the 
said  child,  of  which  the  said  C.  D.  was  then  and  there  pregnant 
and  quick ;  by  the  means  whereof,  the  abortion,  miscarriage,  and 
premature  birth  of  the  said  child  was  caused  and  produced. 
And  she  the  said  C.  D.,  afterwards,  to  wit,  on,  &c.,  next  follow- 
ing, at  B.  aforesaid,  in  the  county  aforesaid,  by  means  of  the 
noxious,  pernicious,  and  destructive  substance  aforesaid,  so  as 
aforesaid  administered  by  the  said  A.  B.,  and  taken  by  the  said 
C.  D.,  was  prematurely  delivered  of  the  said  child,  against,  &e. 
( Conclude  as  in  book  1,  chapter  3.) 

(210)  Producing  abortion  in  New  York,  2  R.  8.  550-51,  §  9,  2d  ed. 

That,  &c.,  on,  &c.,  in  and  upon  one  S.  S.,  she  the  said  S.  S., 
then  and  there,  &c.,  being  pregnant  with  a  quick(e^)  child,  felo- 
niously and  wilfully  did  make  an  assault;  and  that  the  said  de- 
fendant, on,  &c.,  feloniously  and  wilfully  did  use  and  employ  on 
and  upon  the  body  and  womb  of  the  said  S.  S.,  the  mother  of 
the  said  quick  child,  certain  instruments,  to  wit,  one  piece  of 
wire,  &c.,  with  the  intent  thereby  then  and  there  feloniously  and 
wilfully  to  destroy  the  said  quick  child,  the  same  not  being  nec- 
essary to  preserve  the  life  of  the  said  S.  S.,  the  mother  of  the 
said  child,  and  not  having  been  advised  by  two  physicians  to  be 

(e)  3  Chit.  C.  L.  797,  800 ;  Davis'  Prec.  33. 

(el)  Not  necessary  to  state  the  medicine.  State  v.  Van  Houten,  37  Mo.  357; 
State  V.  Vawter,  7  Blackf.  922.     Post,  note  {g). 

(c'^)  Under  this,  there  may  be  a  conviction  when  the  child  is  not  quick.  Peo- 
ple V.  Jackson,  3  Hill,  92 ;  Lohman  v.  People,  1  Comst.  379. 

228 


ABORTION.  (211) 

necessary  for  such  purpose ;  by  means  whereof  the  death  of  the 
said  quick  child  was  thereby  produced,  contrary,  &c.,  and  against, 
&c.(/)     (Conclude  as  in  book  1,  chapter  3.) 

(210^)  Abortion,  under  Mass.  Stat.  c.  27.(/i) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  "  with  force  and  arms,  mali- 
ciously, and  without  lawful  justification,  did  force  and  thrust  a 
certain  metallic  instrument,  which  he  the  said  W.  then  and  there 
had  and  held  in  his  hand,  into  the  womb  and  body  of  a  certain 
woman  by  the  name  of  S.  C,  she  the  said  S.  being  then  and 
there  pregnant  with  child,  with  the  wicked  and  unlawful  intent 
of  him  the  said  W.  then  and  there  to  cause  and  procure  the  said 
S.  to  miscarry  and  prematurely  to  bring  forth  the  said  child,  with 
which  she  was  then  and  there  pregnant  as  aforesaid  ;  and  she, 
the  said  S.,  on,  &c.,  at,  &c.,  by  means  of  the  said  forcing  and 
thrusting  of  said  instrument  into  the  womb  and  body  of  the  said 
Sarah,  in  manner  aforesaid,  did  bring  forth  the  said  child  of 
which  she  was  so  pregnant,  dead  ;  against,  &c."  (Conclude  as  in 
book  1,  chapter  3.) 

(211)  Administering  medicine  under  the  Indiana  statute,  with  intent 
to  produce  dbortion.(^g) 

That  A.  B.,  on,  &c.,  at,  &c.,  did  feloniously,  wilfully,  and  un- 
lawfully administer  to  one  L.  H.,  then  and  there  being  pregnant 

(/)  On  this  indictment  —  to  which  there  is  a  second  count,  averring  the 
operation  to  have  been  with  an  instrument  unknown  —  the  court  on  trial  held 
that  if  the  jury  doubted  as  to  the  killing  of  the  quick  child,  which  is  manslaugh- 
ter by  the  Rev.  Statutes,  they  could  convict  of  killing  the  child  not  quick,  which 
is  but  a  misdemeanor.  The  jury  having  found  the  defendant  guilty  of  the  mis- 
demeanor, the  directions  given  below  were  sustained  by  the  Supreme  Court. 
People  V.  Jackson,  3  Hill,  93. 

(/I)  This  was  sustained  in  Com.  v.  Wood,  11  Gray,  86. 

(gr)  State  v.  Vawter,  7  Blackf  592.  The  objection  made  to  the  indictment 
was,  that  it  neither  names  the  medicine  administered,  nor  states  that  it  was  nox- 
ious. 

The  language  of  the  statute  is,  that  "  every  person  who  shall  wilfully  admin- 
ister to  any  pregnant  woman  any  medicine,  drug,  substance,  or  thing  whatever, 
or  employ  any  instrument,  &c.,  with  intent  thereby  to  procure  the  miscarriage 
of  any  woman,"  &c.  "  This  statute,"  said  the  court,  "  so  far  as  the  present  case 
is  concerned,  is  similar  to  the  second  section  of  the  statute  of  43  Geo.  III.  ;  and 
it  has  been  held  that,  on  the  trial  of  an  indictment  on  that  section,  the  name  of 

229 


(212)  OFFENCES    AGAINST   THE    PERSON. 

with  a  child,  a  large  quantity  of  medicine  with  intent  thereby 
feloniously,  &c.,  to  procure  the  miscarriage  of  said  L.  H.,  the 
administering  said  medicine  to  said  L.  H.  not  then  and  there 
being  necessary  to  preserve  the  life  of  said  L.  H.,  contrary  to  the 
statute,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(212)  Attempt  to  procure  abortion  by  administering  a  drug.,  under 

Ohio  statute. 

That  A.  B.,  on  the  first  day  of  October,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty,  in  the  County  of 
Cuyahoga  aforesaid,  unlawfully,  wilfully,  and  feloniously  did 
administer  to,  and  cause  to  be  taken  by  one  M.  N.,  then  and 
there  being  a  pregnant  woman,  a  large  quantity  of  a  certain 
noxious  and  poisonous  drug  and  substance,  to  wit,  one  pint  of  a 
certain  noxious  and  poisonous  decoction  of  brandy,  logwood, 
and  other  poisonous  drugs  and  medicines  to  the  deponent  afore- 
said unknown,  with  intent  then  and  there,  and  thereby,  to  pro- 
cure the  miscarriage  of  the  said  M.  N. ;  said  administering  and 
taking  the  aforesaid  poisonous  and  noxious  decoction  of  brandy, 
logwood,  and  other  unknown  noxious  and  poisonous  drugs  and 
medicines,  then  and  there  being  wholly  unnecessary  for  the  pres- 
ervation of  the  life  of  the  said  M.  N.,  and  said  administering 
and  taking  said  noxious  and  poisonous  decoction  of  brandy,  log- 
wood, and  said  unknown  noxious  drugs  and  medicines  then  and 
there  not  having  been  advised  by  two  physicians  to  be  necessary 
for  the  preservation  of  the  life  of  the  said  M.  N.(A)     (Conclude^ 

Src.) 

the  medicine  administered  need  not  be  proved ;  that  the  question  is.  whether 
the  prisoner  administered  any  matter  or  thing  to  the  woman  with  intent  to  pro- 
cure abortion."  Rex  v.  Phillips,  3  Campb.  73.  I  think  the  name  of  the  medi- 
cine need  not  be  proved ;  there  seems  to  be  no  good  reason  for  naming  it  in  the 
indictment.  It  is  also  decided  in  the  case  first  referred  to,  that  the  indictment 
need  not  describe  the  medicine  as  noxious.  See  State  v.  Van  Houten,  37  Mo. 
357. 

(h)  Warren's  C.  L.  95. 
230 


ASSAULT. 


CHAPTER   VII. 

ASSAULTS. 

(213)  Indictment  for  a  common  assault. 

(214)  Assault  without  battery. 

(215)  Assault  and  battery.     Massachusetts  form. 

(216)  Information  in  Connecticut  for  assault  and  battery  and  breach  of 

peace,  with  commencement  and  conclusion. 

(21 7)  Assault  and  battery  in  New  York,  with  commencement  and  con- 

clusion. 

(218)  Assault  and  battery  in  New  Jersey,  with  commencement  and  con- 

clusion. 

(219)  Assault  and   battery  in  Pennsylvania,  with  commencement  and 

conclusion. 

(220)  Threatening  in  a  menacing  manner,  under  Ohio  statute. 

(221)  Assault  and  encouraging  a  dog  to  bite. 

(222)  Assault  and  tearing  prosecutor's  hair. 

(223)  Assaulting  the  driver  of  a  chaise,  and  overturning  the  chaise  with 

the  wheel  of  a  cart. 

(224)  Assault  and  beating  out  an  eye. 

(225)  Assault  and  riding  over  a  person  with  a  horse. 

(226)  [For  assault  on  a  pregnant  woman,  see  204,  &c.] 

(227)  Assault  by  administering  cantharides  to  prosecutor. 

(228)  Assault  with  intent  to  kill  an  infirm  person,  by  throwing  him  on 

the  ground  and  beating  him. 

(229)  For  throwing  corrosive  fluid,  with  intent,  &c. 

(230)  [See  for  "  assaults  with  intent,"  &c.,  242,  &c.,  and  also,  1046,  &c.] 

(231)  Assault  with  beating  and  wounding  on  the  high  seas. 

(232)  Assault  on  high  seas,  by  binding  the  prosecutor  and  forcino-  an 

iron  bolt  down  his  throat. 

(233)  Stabbing  with  intent  to  wound,  under  Ohio  stat.  p.  49,  §  6. 

(234)  Shooting  with  intent  to  wound,  under  Ohio  stat.  p.  49,  §  6. 

(235)  Assault  on  high  seas,  with  dangerous  weapon. 

(236)  Another  form  for  same. 

(237)  Same  in  a  foreign  port,  the  weapon  being  a  Spanish  knife. 

(238)  Second  count,  same  as  first,  charging  the  instrument  dif- 

ferently. 

(239)  Third  count.     Assault  with  intent  to  kill. 

(240)  Assault  and  false  imprisonment  at  common  law. 

(241)  Assault  and  false  imprisonment,  with  the  obtaining  of  five  dollars. 

(242)  Assault  with  intent  to  murder  at  common  law. 

231 


(213)  OFFENCES   AGAINST   THE   PERSON. 

(243)  Another  form  for  same. 

(244)  Assault  with  intent  to  drown. 

(245)  Assault  with  intent  to  murder,  under  the  New  York  Rev.  Stat. 

(246)  Second  count.     With  intent  to  maim. 

(247)  Assault  with  intent  to  commit  a  felony  generally. 

(248)  Felonious  assault,  under  the  Massachusetts  statute. 

(249)  Assault  with  intent  to  murder,  in  South  Carolina. 

(250)  Felonious  assault  with  intent  to  rob,  being  armed.     Rev.  Sts.  of 

Mass.  eh.  125,  §  14. 

(251)  Assault  with  intent  to  rob,  against  two. 

(252)  Another  form  for  same. 

(253)  Assault  with  intent  to  ravish. 

(254)  Same  under  Rev.  Sts.  of  Mass.  ch.  125,  §  19. 

(255)  Assault  with  intent  to  rape,  under  Ohio  stat.  p.  48,  §  4. 

(256)  Another  form  for  assault  with  intent  to  ravish. 

(257)  Same  against  two. 

(259)  Indecent  assault. 

(260)  Indecent  assault  with  intent  to  have  an  improper  connection. 

(261)  Indecent  assault  by  stripping. 

(262)  Assault  with  intent  to  rape.     Attempting  to  abuse  a  female  under 

ten  years  of  age  under  Ohio  stat.  p.  48,  §  4. 

(263)  Assault  with  intent  to  steal. 

(213)  Indictment  for  a  common  assault. 

That  A.  B.,  late  of,  &c.,  on,  &c.,  with  force  and  arms,(a)  in 
and  upon  one  C.  D.,  in  the  peace  of  God  and  of  the  said  State 
then  and  there  being,(^)  did  unlawfully  and  wilfully  {b^)  make 
an  assault  ;(Z'2)  and  him  the  said  C.  D.  did  then  and  there  beat,((?) 
wound,  and  ill-treat,  and  other  wrongs  to  the  said  C.  D.  then  and 
there  did,  against  the  peace,  &c.(c^)  (Conclude  as  in  book  1, 
chapter  3.) 

(a)  As  to  necessity  of  these  words,  see  Wh.  C.  L.  §  403. 
(fe)  See  Wh.  C.  L.  §  1055. 

(61)  "Unlawfully  "  is  not  essential.     State  v.  Bray,  1  Mo.  126. 

(62)  In  Louisiana  this  is  not  necessary  where  the  facts  making  up  the  assault 
are  averred.     State  v.  Munce,  12  La.  Ann.  625. 

(c)  The  practice  is  to  allege  a  battery,  though  if  no  battery  be  shown,  the  de- 
fendant may  be  convicted  of  a  common  assault.  Wh.  C.  L.  §§  393,  1263.  The 
particular  acts  of  violence  need  not  be  set  forth  when  an  assault  is  averred. 
Bloomer  v.  State,  3  Sneed  (Tenn.),  GG. 

(rf)  ( Of  common  assaults.)     See  Wh.  C.  L.  as  follows  :  — 
I.  Assaults  generally,  §  1 240. 
A.  Statute. 

Ohio,  §  1240. 
232 


^ 


ASSAULTS.  (214) 

(214)  Assault  without  battery. 
That  A.  B.,  6f  in  the  County  of  laborer,  on,  &c., 

with  force   and  arms,  at  in  the  county  aforesaid,  in  and 

B.  Offence  generally. 

1st.  What  constitutes  an  assault,  or  an  assault  and  battery,  §  1241. 
2d.    Defence,  §  1252. 

(a)  Pendency  of  civil  proceedings,  §  1252. 
(6)  AVords  of  provocation,  §  1253. 
(c)  Misadventure,  &c.,  §  1254. 
((/)  Retaking  or  defence  of  property,  §  1255. 
(e)   Prior  assault,  §  1258. 

(/)  Correction  by  persons  in  authority,  §  1259. 
((/)   Guilt  of  major  offence,  §  1261. 
(A)  Assent  of  prosecutor,  §  1262. 
A  3d.    Indictment  and  verdict,  §  1263. 

I  II.  Assaults  with  felonious  intent. 

A.  Statutes. 

United  States. 

Assault  upon  high  seas,  &c.,  §  1264. 
Breaking  or  entering  ship,  vessel,  or  raft,  §  1265. 
Massachusetts. 

Assault  with  intent  to  murder,  maim,  or  disfigure,  §  1266. 
Assault  by  person  not  armed  with  dangerous  weapon,  §  1267. 
Assault  with  intent  to  commit  rape,  §  1268. 
A  Assault  with  intent  to  commit  burglary,  robbery,  rape,  &c.,  §  1269. 

■|  New  York. 

Shooting  at  another,  or  an  assault  and  battery  upon  another,  with 

intent  to  kill,  &c.,  §  1270. 
Conviction  of  a  person  of  an  assault  with  intent  to  commit  rob- 
bery, burglary,  &c.,  §  1271. 
No  person  shall  be  convicted  of  an  assault  with  intent,  when 

such  has  been  perpetrated,  §  1272. 
Administering  poison  to  another,  where  death  shall  not  ensue, 

§1273. 
Assault  with  knife,  dirk,  or  dagger,  §  1274. 
I  Indictment  of  person  for  assault  with  intent  to  kill,  §  1275. 

'  Ohio. 

Assault  with  intent  to  commit  murder  or  robbery,  §  1276. 
Maliciously  shoot  at  or  stab  a  person  with  intent  to  kill,  §  1277. 
Administering  poison  to  another  with  intent  to  take  life,  §  1278. 

B.  Offence  generally,  §  1279. 

An  assault  is  an  attempt  or  offer  to  do  an  injury  to  the  person  of  another, 
under  circumstances  denoting  a  present  intention,  coupled  with  a  present  ability 
to  do  such  an  injury,  whether  that  injury  be  actually  done  or  not.     Selw.  N.  P. 

233 


(214)  OFFENCES   AGAINST   THE    PERSON. 

upon  one  C.  D.  (in  the  peace  of  the  said  commonwealth  then 
and  there  being),  with  a  certain  offensive  weapon  called  a  cane, 

lOth  ed.  25.  See  Stephens  v.  Myers,  4  C.  &  P.  349,  Tindal,  C.  J.  ;  and  Hawk, 
b.  2,  c.  62.  s.  1.  Thus,  lifting  up  a  stick  or  fist  in  a  threatening  attitude,  so 
near  to  the  pai-ty  threatened  that  a  blow  might  take  effect,  although  the  fist 
or  the  stick  is  not  brought  in  actual  contact  with  his  person  ;  presenting  a  loaded 
fire-arm  at  a  person  within  the  distance  to  which  it  will  carry,  though  without 
firing  it,  or  even  unloaded,  if  having  the  appearance  to  him  of  being  loaded,  and 
so  near  that  if  it  was  loaded  and  went  off,  it  might  produce  injury  (diet.  Parke, 
B.,  Reg.  V.  St.  George,  9  C.  &  P.  493 ;  queer e,  see  Selw.  N.  P.  10th  ed.  25 ; 
Stephens  v.  Myers,  4  C.  &  P.  349,  Tindal,  C.  J. ;  and  Hawk.  b.  2,  c.  62,  s.  1 ; 
Wh.  C.  L.  §§  1241-50)  ;  striking  at  or  throwing  any  substance  at  another  with 
intent  to  strike,  though  the  attempt  fail,  are  assaults  in  law ;  and  it  is  said  that 
though  the  prosecutor  was  beyond  the  defendant's  reach,  yet  if  the  distance  was 
such  to  induce  a  man  of  ordinary  firmness,  under  the  accompanying  circum- 
stances, to  believe  that  he  will  at  once  receive  a  blow,  unless  he  strikes  back  in 
self-defence,  it  is  an  assault.  State  i\  Davis,  1  Iredell,  125.  Mere  words,  how- 
ever, whatever  violence  they  may  threaten,  never  amount  to  an  assault.  Hawk, 
b.  2,  c.  62,  s.  1.  The  fact  of  firing  a  gun  into  a  room  of  A.'s  house,  with  intent 
to  shoot  A.,  the  prisoner  supposing  him  to  be  in  the  room,  will  not  support  a 
charge  of  shooting  at  A.,  if  he  is  shown  not  to  be  in  the  room,  or  within  reach 
of  the  shot.  Reg.  v.  Lovel,  2  M.  &  R.  39.  (Gurney  B.)  So  where  the  de- 
fendant at  the  time  qualifies  the  action  by  saying,  "  Were  you  not  so  old  I  would 
knock  you  down,"  or  words  to  that  effect,  the  purpose  thus  restricted  does  not 
amount  to  an  assault.  State  v.  Crow,  1  Iredell,  375;  Com.  v.  Eyre,  1  S.  &  R. 
347;  State  v.  Davis,  1  Iredell,  125.  Such  assaults  do  not  include  a  battery, 
which  consists  in  some  actual  and  unwarranted  force  applied  to  the  person ;  but 
every  battery,  however  small,  includes  an  assault ;  e.  g.  spitting  in  a  man's  face, 
cutting  off  his  hair  in  derision  (Forde  v.  Skinner,  4  C.  &  P.  239  ;  see  C  &  K. 
160)  ;  forcibly  stripping  him  of  his  clothes  (see  Bunbolf  v.  Alford,  3  M.  &  W. 
248)  ;  or  even  touching  him,  if  done  with  the  purpose  to  insult  him.  King  et 
ux.  V.  Jebbert,  Skinner,  387,  cited  1  Saund.  14.  And  the  assault  and  battery 
will  be  equally  committed,  Avhether  by  actually  employing  the  hand,  or  by  any 
other  means,  as  giving  cantharides,  or  placing  an  infant  in  a  bag,  hanging  the 
bag  on  palings  and  leaving  it  there.  Reg.  v.  March,  C.  &  K.  496.  Setting  a 
dog  on  another,  or  driving  a  cart  wilfully  against  the  carriage  of  another,  by 
which  bodily  injury  is  done  to  those  within  it ;  for  every  party  in  an  assault, 
whether  acting  by  himself  or  through  another,  is  liable  as  principal.  State  v. 
Lymburn,  1  Brevard,  397  ;  Wh.  C.  L.  §  1278,  &c.  So  if  a  drunken  person  be 
wilfully  pushed  against  the  complainant  (Short  v.  Lovejoy,  Bull.  N.  P.  16); 
but  the  rule  does  not  bear  where  the  act  is  merely  the  result  of  accident,  or  an 
injury  in  an  amicable  contest  (if  lawful),  as  in  wrestling.  Com.  Dig.  Pleader  (3 
M.  18) ;  see  Bull  N.  P.  16  ;  Bac.  Abr.  tit.  Assault  and  Battery,  B. ;  1  East,  P.  C. 
268.  All  struggles  in  anrjer,  however,  whether  by  wrestling,  pushing,  &c.,  are  un- 
lawful, so  that  death  occasioned  thereby  is  manslaughter  at  least  (Reg.  v.  Can- 
niff,  9  C.  &  P.  359)  ;  and  this  same  principle  applies  where  one  party  gives  an- 

234 


ASSAULTS.  (214) 

did  make  an  assault,  and  other  wrongs  to  the  said  C.  D.  then 
and  there  did  and  committed,  to  the  great  injury  of  him  the  said 
C.  D.,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

other  a  whipping  at  the  request  of  the  latter,  who  was  under  the  impression 
that  he  would  thereby  be  relieved  from  a  prosecution  for  felony.  State  v.  Beck, 
1  Ilill,  363. 

An  assault  may  also  l)e  committed  by  exposing  a  servant  of  tender  years  to 
the  inclemency  of  the  weather  (R.  v.  Kidley,  2  Camp.  650,  653  ;  see  s.  10  of  c. 
6  Dickinson's  Q.  S. ) ;  by  taking  indecent  liberties  with  a  female  pupil  of  thir- 
teen years  of  age,  without  her  consent,  though  she  may  not  offer  actual  resist- 
ance (R.  V.  NichoU,  R.  &  R.  130)  ;  and  even  by  a  medical  practitioner  who 
wantonly  strips  a  female,  under  false  pretence  that  he  cannot  otherwise  judge 
of  her  illness,  even  though  she,  under  such  impression,  acquiesces  (R.  v.  Resinski, 

1  Mood.  C.  C.  19)  ;  but  not  by  "attempting  to  assault  a  girl  by  inducing  and 
soliciting  her  to  place  herself  in  an  indecent  attitude,"  the  defendant  doing  the 
like.  R.  V.  Butler,  6  C.  &  P.  368;  Wh.  C.  L.  §§  1241-63.  Being  present  at  a 
prize-fight  in  order  to  see  it,  is  indictable  as  an  assault.  R.  v.  Perkins,  4  C.  &  P. 
537.     See  R.  v.  Bellingham,  2  C.  &.  P.  234. 

(Cases  where  even  battery  is  no  offence.)  There  are  many  cases,  however,  in 
which  even  battery  is  no  offence.  Thus,  whenever  a  man  is  first  assaulted,  he 
may  lawfully  strike  with  a  violence  not  exceeding  that  which  appears  necessary 
for  the  defence  of  his  person ;  though  he  cannot  justify  a  battery  manifestly  ex- 
cessive by  setting  up  the  first  assault  from  his  adversary.  Bull.  !N^.  P.  18.  See 
Fish  V.  Scott,  Peake,  C.  N.  P.  135.  (Qucere,  if  an  assault  committed  by  A., 
after  first  being  assaulted  by  B.,  is  not  an  indictahle  offence  by  A. ;  see  Hinton 
V.  Heather;  Dickinson's  Q.  S.  316.)  So  he  may  remove  a  trespasser  from  his 
land,  after  requesting  him  to  depart;  and  even  without  such  request,  where 
the  party  is  proceeding  to  acts  of  destruction  and  violence,  or  is  forcibly  re- 
moving goods  (Green  v.  Goddard,  2  Salk.  641  ;  Com.  v.  Kennard,  8  Pick. 
1 33)  ;  though  the  application  of  any  unnecessary  amount  of  force  is  indictable. 
State  V.  Lazarus,  1  Const.  S.  C.  R.  34.  The  use  of  necessary  force  in  extend- 
ing legal  process  on  the  person,  and  for  frustrating  an  attempt  to  escape,  may 
also,  at  all  times,  be  justified ;  but  the  force  must  be  necessary  and  not  wanton. 

2  Roll.  Abr.  546,  A.  And  there  are  relationships  which  justify  a  battery  in  de- 
fence of  another :  thus,  a  husband  may  justify  a  battery  in  defence  of  a  wife ;  a 
wife  in  defence  of  her  husband;  a  parent  in  defence  of  his  child;  a  child  in  de- 
fence of  his  parent ;  a  master  in  defence  of  his  servant ;  and  a  servant  in  defence 
of  his  master.  Hawk.  b.  1,  c.  60,  s.  23.  But  it  has  been  said,  that  a  servant 
cannot  justify  beating  another  in  defence  of  his  master's  son,  though  he  was 
commanded  to  do  so  by  his  master,  because  he  is  not  a  servant  to  the  son ;  and 
that  a  tenant  may  not  beat  another  in  defence  of  his  landlord.  Hawk.  b.  1.  c. 
60,  s.  24 ;  Wh.  C.  L.  §§  1253-62. 

A  battery  may  also  be  justified  when  done  in  the  way  of  domestic  correction 
by  a  party  having  authority  to  employ  it ;  as  if  a  father  correct  his  infant  son ; 
a  schoolmaster  his  scholar;  or  a  master  his  apprentice  (State  w.  Pendergrass, 

235 


(216)  OFFENCES   AGAINST   THE   PERSON. 

(215)  Assault  and  batter?/.     Massachusetts  form. 
That  A.  B.,  of  in  the  County  of  laborer,  on,  &c., 

with  force  and  arms,  at  in  the  county  aforesaid,  in  and 

upon  the  body  of  one  C.  D.  (in  the  peace  of  the  said  common- 
wealth then  and  there  being)  an  assault  did  make,  and  him  the 
said  C.  D.  did  then  and  there  beat,  abuse,  wound,  and  ill-treat, 
and  other  wrongs  then  and  there  did  and  committed,  to  the  great 
damage  of  the  said  C.  D.,  and  against  the  peace  and  dignity  of 
the  commonwealth  aforesaid. 

(216)  Information  in  Connecticut  for  assault  and  battery  and  breach 
of  peace,  with  commencement  and  conclusion. 

State  of  Connecticut,  New  Haven  County,  ss.     New  Haven, 

day  of  184 

To  justice  of  the  peace  for  said  county,  residing  in  said 

town,  comes  a  grand  juror  for  said  town,  and  on  his  oath 

of  office,  information  makes,  that,  at  said  New  Haven,  on  the 
day  of  184  with  force  and  arms,  in  and  upon 

in  the  peace  then  and  there  being,  did  make  an  assault, 
and  the  said  then  and  there  did  beat,  bruise,  wound, 

and  ill-treat ;  and  other  wrongs  and  injuries  then  and  there  did, 
to  the  great  damage  of  the   said  and   against  the  peace. 

And  the  grand  juror  further  informs,  that  the  said  with 

force  and  arms,  on  the  day  and  year  last  aforesaid,  at  New  Haven 
aforesaid,  by  tumultuous  and  offensive  carriage  towards,  and  by 
threatening,  traducing,  challenging,  quarrelling,  assaulting,  beat- 
ing, and  striking  in  the  peace  then  and  there  being,  did 
greatly  disturb  the  public  peace,  and  other  wrongs  and  injuries 
then  and  there  committed,  against  the  peace,  of  evil  example, 
and  contrary  to  the  statutes  in  such  cases  made  and  provided. 
And  the  grand  juror  aforesaid  further  complains,  that  {setting' 

2  Dev.  &  Bat.  407)  ;  provided  the  punishment  be  moderate,  and  the  instrument 
of  correction  proper.  Johnson  v.  State,  2  Humph.  283 ;  Hawk.  b.  1,  c.  60,  s. 
24.  And  it  has  been  holden,  that  an  officer  of  the  army  may  justify  even  a 
wounding,  if  done  for  disobedience  of  orders ;  and  that  a  sentence  of  a  council 
of  war  in  his  favor,  on  the  petition  of  the  soldier  wounded,  will  conclusively  en- 
title him  to  an  acquittal.  Lane  v.  Hegberg,  Bull.  N.  P.  19.  Semble:  an  im- 
prisonment will  not  necessarily  amount  to  battery.  See  Wilson  v.  Lainson,  3 
New.  K  307 ;  Briggs  v.  Bowgin,  1  New  R.  355  ;  Wh.  C.  L.  §§  1253-62. 
236 


ASSAULTS.  (218) 

forth  further  breach  of  peace  ^  if  any^  Sfc).  Wherefore  the  grand 
juror  aforesaid  prays  process,  and  that  the  said  may  be  ar- 

rested and  held  to  answer  the  complaint,  and  be  dealt  with  ac- 
cording to  law.  Dated  at  New  Haven  the  day  and  year  first 
aforesaid. 

Grand  Juror. 

(217)  Assault  and  lattery  in  New  York,  with  commencement  and 

conclusion. 

City  and  County  of  New  York,  ss.  The  jurors  of  the  people 
of  the  State  of  New  York,  in  and  for  the  body  of  the  City  and 
County  of  New  York,  upon  their  oath  present, 

That  A.  B.,  late  of  the  First  Ward  of  the  City  of  New  York, 
in  the  County  of  New  York  aforesaid,  &c.,  on,  &c.,  at  the  ward, 
city,  and  county  aforesaid,  in  and  upon  the  body  of  C.  D.,  in  the 
peace  of  God  and  of  the  said  people,  then  and  there  being,  with 
force  and  arms  did  make  an  assault ;  and  him  the  said  C.  D.  did 
then  and  there  beat,  wound,  and  ill-treat,  and  other  wrongs  and 
injuries  to  the  said  C.  D.  then  and  there  did,  to  the  great  damage 
of  the  said  C.  D.,  to  the  evil  example  of  all  others  in  like  case 
offending,  and  against  the  peace  of  the  people  of  the  State  of 
New  York,  and  their  dignity. 

(218)  Assaidt  and  battery  in  New  Jersey,  with  commencement  and 

conclusion. 

County,  to  wit :    The  grand  inquest  for  the   State  of 

New  Jersey,  and  for  the  body  of  the  County  of  upon  their 

present. 

That  A.  B.,  late  of  the  township  of  in  the   County  of 

on,  &c,,  with  force  and  arms,  at  the  township  aforesaid, 

in  the  county  aforesaid,  and  within  the  jurisdiction  of  this  court, 

in  and  upon  one   C.  D.,  in  the  peace  of  God  and  of  this  State, 

then  and  there  being,  an  assault  did  make,  and  him  the  said  C. 

D.  then    and   there  did   beat,  wound,  and   ill-treat,  and   other 

wrongs  to  the  said  C.  D.  then  and  there  did,  to  the  great  damage 

of  the  said  C.  D.,  contrary  to  the  form  of  the  statute  in  such 

case  made  and  provided,  and  against  the  peace  of  this  State,  the 

government  and  dignity  of  the  same. 

237 


(220)  OFFENCES    AGAINST   THE   PERSON. 

(219)  Assault  and  battery  in  Pennsylvania^  with  commencement  and 

conclusion. 

In  the  Court  of  Quarter  Sessions  of  the  Peace  for  the  City 
and  County  of  Philadelphia,  Sessions,  187 

City  and  County  of  Philadelphia,  ss. 

The  grand  inquest  of  the  Commonwealth  of  Pennsylvania, 
inquiring  for  the  City  and  County  of  Philadelphia,  upon  their 
respective  oaths  and  affirmations  do  present,  that  A.  B.,  late  of 
said  county,  &c.,  at  the  county  aforesaid,  and  within  the  jurisdic- 
tion of  this  court,  with  force  and  arms,  in  and  upon  one  C.  D.,  in 
the  peace  of  the  said  commonwealth,  then  and  there  being,  did 
make  an  assault,  and  him  the  said  C.  D.  did  beat,  wound,  and 
ill-treat,  and  other  wrongs  to  him  the  said  C.  D.  then  and  there 
did,  to  the  great  damage  of  the  said  C.  D.,  and  against  the  peace 
and  dignity  of  the  Commonwealth  of  Pennsylvania. 

(220)    Threatening  in  a  menacing  mamier^  under  Ohio  statute.id) 

That  A.  B.,  on  the  day  of  in  the  year  of  our  Lord 

one   thousand  eight  hundred  and  in  the  County  of 

aforesaid,  designing  and  intending  one  M.  N.,  then  and  there  be- 
ing, in  great  bodily  fear  to  put,  him  the  said  M.  N.  then  and 
there  did  unlawfully  and  maliciously  threaten,  in  a  menacing 
manner. 

(fi)  "  Tliis  offence,"  says  Mr.  Warren,  "  is  defined  in  the  same  section  of  the 
statute  that  defines  assault  and  battery.  And  in  Hamilton  County  it  has  been 
the  practice,  uniformly,  to  charge  it  in  the  same  count  with  those  offences. 
Otherwise  than  this,  no  precedents  for  the  offence  have  been  found  by  the  com- 
piler. The  offence  is  quite  different  from  an  assault.  By  the  common  law,  in  a 
prosecution  for  an  assault,  if  the  defendant  could  make  it  appear  that  he  only 
intended  to  terrify  by  his  conduct  and  gesticulations,  he  could  not  then  be  con- 
victed, for  an  assault  is  an  aitempl  to  do  an  injury.  But  the  Legislature  of  Ohio 
wisely  provided  against  this  injustice  by  imposing  the  same  penalty  upon  him 
who  attempts  to  put  another  in  fear,  as  upon  him  who  actually  commits  or  at- 
tempts to  commit  personal  violence;  thus  establishing  the  true  theory  that  every 
man  has  a  right  not  only  to  be  safe,  but  also  to  feel  safe.  The  words  'in  a  men- 
acing manner '  imply  that  there  must  be  something  more  than  a  threat  to  do  a 
future  injury ;  there  must  be  a  menacing  with  the  fist  or  a  weapon,  or  some  indi- 
cation that  the  offender  intends  to  carry  his  threats  into  immediate  execution, 
or  otherwise  this  offence  will  not  be  complete.  And  the  offence  may  doubtless 
be  committed  without  uttering  even  a  single  word  of  speech."    Warren's  C.  L.  62. 

238 


ASSAULTS.  (222) 

(221)  Assault  and  encouraging  a  dog  to  hite.(e) 

That  A.  B.,  of  in  the  county  aforesaid,  laborer,  on,  &c., 

now  last  past,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and 
upon  one  C.  D.  an  assault  did  make,  and  him  the  said  C.  D.  did 
then  and  there  beat,  wound,  and  abuse,  and  that  he  the  said  A. 
B.  did  then  and  there  unlawfully  incite,  provoke,  and  encourage 
a  certain  dog,  belonging  to  him  the  said  A.  B.,  him  the  said  C. 
D.  then  and  there  to  beset  and  bite ;  by  means  whereof  the  same 
dog  did  then  and  there  grievously  bite  the  right  leg  of  him  the 
said  C.  D.,  whereby  the  said  leg  of  him  the  said  C.  D.  was  griev- 
ously hurt  and  wounded,  and  his  life  greatly  endangered,  and 
other  wrongs  to  the  said  C.  D.  then  and  there  did,  to  the  great 
damage  of  the  said  C.  D.,  against,  &c. 

(222)  Assault  and  tearing  prosecutor''  s  hair.{f') 

That  A.  B.,  of  in  the  county  aforesaid,  laborer,  on,  &c., 

with  force  and  arms,  at  in  the   county  aforesaid,  in  and 

upon  the  body  of  one  C.  D.  (in  the  peace  of  the  said  common- 
wealth, then  and  there  being)  did  make  an  assault,  and  her  the 
said  C.  D.  did  then  and  there  beat,  wound,  and  abuse ;  and  that 
he  the  said  A.  B.  did  then  and  there  unlawfully,  violently,  and 
cruelly  seize  and  lay  hold  of  the  said  C.  D.,  by  the  hair  of  her 
head,  and  did  then  and  there  with  great  force,  wrath,  and  vio- 
lence, pull  and  drag  the  said  C.  D.  by  the  same ;  by  means 
whereof  he  the  said  A.  B.  did  then  and  there  unlawfully,  cruelly, 
and  brutally  pull  and  tear  the  hair  of  the  head  of  her  the  said  C. 
D.  off  by  the  roots,  and  the  head  of  her  the  said  C.  D.  was  thereby 
grievously  wounded  and  hurt,  and  the  said  C.  D.  thereby  put  in 
great  pain  and  torture,  and  other  wrongs  then  and  there  did  and 
committed,  to  the  great  damage  of  her  the  said  C.  D.,  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(e)  3  Chit.  C.  L.  824;  Cro.  C.  C.  145  ;  Stark.  C.  P.  389;  Davis'  Free.  58. 
(/)  Davis'  Prec.  56. 

239 


(224)  OFFENCES   AGAINST   THE    PERSON. 


i 


(223)  Assaulting  the  driver  of  a  chaise,  and  overturning  the  chaise 
with  the  wheel  of  a  eart.(g^ 
That  A.  B.,  of  in  the   County  of  laborer,  on,  &c., 

with  force  and  arms,  at  B.,  in  the  county  aforesaid,  in  and  upon 
one  C.  D.  did  make  an  assault,  he  the  said  C.  T>.  being  then  and 
there  in  a  certain  chaise  drawn  by  one  horse,  and  in  the  public 
street  and  common  highway  there ;  and  that  he  the  said  A.  B., 
then  and  there  driving  a  horse  drawing  a  cart,  did,  in  the  high- 
way aforesaid,  unlawfully,  violently,  wantonly,  and  maliciously 
drive  said  horse,  so  as  aforesaid  drawing  said  cart,  to  and  against 
the  chaise  aforesaid,  and  that  by  such  driving  did  then  and  there, 
in  the  highway  aforesaid,  unlawfully,  wantonly,  and  maliciously 
force  said  cart  against  the  said  chaise,  and  thereby  overturn,  with 
one  of  the  wheels  of  said  cart,  the  said  chaise  in  which  the  said 

C.  D.  then  was  as  aforesaid,  by  means  whereof  he  the  said  C. 

D.  was  then  and  there  grievously  hurt,  bruised,  and  wounded,  and 
other  wrongs  then  and  there  did  and  committed,  to  the  great 
damage  of  him  the  said  C.  D.,  against,  &c.  ( Conclude  as  in  book 
1,  chapter  3.) 

(224)  Assault  and  beating  out  an  eye.Qi) 

That  A.  B.,  of  in  the  County  of  widow  (being  a 

person  of  depraved  and  malicious  disposition),  on,  &c.,  with  force 
and  arms,  at  aforesaid,  in  the  county  aforesaid,  in  and  upon 

one  C.  D.  violently  did  make  an  assault,  and  her  the  said  C.  D. 
did  then  and  there  beat,  wound,  and  ill-treat,  and  that  she  the 
said  A.  B.,  with  her  right  hand,  the  said  C.  D.,  in  and  upon  the 
left  eye  of  her  the  said  C.  D.,  then  and  there  unlawfully,  vio- 
lently, and  maliciously  did  strike,  by  means  whereof  the  said  C. 
D.,  then  and  there,  the  use,  sight,  and  benefit  of  her  said  left  eye 
entirely  lost  and  was  deprived  of;  and  also,  by  means  of  the 
premises,  she  the  said  C.  D.  became  weak  and  sick,  and  remained 
so  weak  and  sick  from  thence  until  the  day  of  taking  this  in- 
quisition ;  and  other  wrongs  then  and  there  did  and  committed, 
to  the  great  damage  of  the  said  C.  D.,  against,  &c.  ( Conclude 
as  in  book  1,  chapter  3.) 

(^)   Davis'  Free.  57.  ^ 

(A)  3  Chit.  C.  L.  822;  Davis'  Free.  55.  \ 

240  4 

I 


ASSAULTS.  (228) 

(225)  Assault  and  riding  over  a  person  ivith  a  horse. Ql') 
That  A.  B.,  of  in  the  County  of  laborer,  on,  &c., 

at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon  the  body  of 
one  C.  D.  an  assault  did  make,  and  him  the  said  C.  D.  did  then 
and  there  beat,  wound,  and  abuse;  and  that  the  said  A.  B.  did 
then  and  there,  unlawfully,  maliciously,  and  with  great  force  and 
violence,  ride  and  drive  a  certain  horse,  then  and  there  under  the 
guidance  and  command  of  him  the  said  A.  B.,  against,  upon, 
and  over  the  body  of  the  said  C.  D.,  whereby  the  said  C.  D.  was 
then  and  there  grievously  wounded  and  bruised,  and  his  life 
thereby  greatly  endangered,  and  other  wrongs  then  and  there  did 
and  committed,  to  the  great  damage  of  him  the  said  C.  D., 
against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(226)   \_For  assaidts  on  a  pregnant  woman.,  see  ante.,   "  Ahortion^ 

204,  #.."] 

(227)  Assault  hy  administering  canfharides  to  prosecutor. (^j') 

That  defendant,  on,  &c.,  at,  &c.,  in  and  upon  one  E.  J.  did 
make  an  assault,  and  then  and  there  did  unlawfully  and  mali- 
ciously administer  and  cause  to  be  administered  to  and  taken  by 
the  said  E.  J.  a  large  quantity,  that  is  to  say,  two  scruples,  of 
cantharides,  the  same  being  then  and  there  a  deleterious  and  de- 
structive drug,  with  intent  thereby  to  injure  the  health  of  the  said 
E.  J.,  and  the  said  E.  J.  became  in  consequence  thereof  sick, 
sore,  and  diseased,  and  disordered  in  her  body,  insomuch  that 
her  life  was  greatly  despaired  of,  &c.  ( Conclude  as  in  book  1, 
chapter  3.) 

(^Add  count  for  common  assault.^ 

(228)  Assault  with  intent  to  hill  an  infirm  person.,  hy  throwing  him 
on  the  ground  and  heating  him.ijc) 

That  A.  N.,  late  of  the  county  aforesaid,  laborer,  with  force 
and  arms,  at  and  in  the  county  aforesaid,  in  and  upon  A.,  a  man 

(i)  3  Chit.  C.  L.  823;   Davis'  Free.  58. 

(y)   Tliis  count  was  sustained  in  R.  v.  Button,  8  C.  &  P.  660. 
(Jc)  Nixon  V.  People,  2  Scam.  267.    On  tliis  case  Browne,  J.,  said  :  "  This  was 
an  indictment  to  commit  murder,  upon  which  Nixon  was  tried  at  the  last  April 
VOL.  I.  — 16  241 


(228)  OFFENCES   AGAINST   THE    PERSON. 

of  color,  then  and  tlicrc  being  a  deformed  person,  and,  by  reason 
of  his  being  such  a  deformed  person,  being  unable  to  walk  or 
otherwise  to  move  himself  from  place  to  place,  and  also  then  and 
there  being  deficient  in  voice,  so  as  to  be  unable  to  call  aloud, 
and  in  the  peace  of  God  and  of  the  people  of  the  State  of  Illi- 
nois then  and  there  also  being,  unlawfully  did  make  an  assault, 
and  then  and  there  forced  and  threw  the  said  A.  from  a  certain 
wagon,  in  which  he  the  said  A.  then  and  there  was,  to  and  upon 
the  ground,  the  said  ground  then  and  there  being  frozen  and  very 
cold,  and  then  and  there  did  force  and  compel  the  said  A.  (so 
being  such  deformed  person  as  aforesaid,  and  also,  by  reason  of 
his  being  such  deformed  person,  being  unable  to  move  himself 
from  place  to  place  as  aforesaid,  and  also  being  deficient  in  voice, 
so  as  to  be  unable  to  call  aloud  as  aforesaid)  then  and  there  to  lie 
upon  the  ground,  so  being  frozen  and  very  cold  as  aforesaid,  and 
then  and  there  did  abandon  and  leave  him  the  said  A.,  lying  on 
the  ground  as  aforesaid,  to  the  great  pain  and  torture  of  the  said 
A.,  and  to  the  great  damage  and  impoverishment  of  his  health 
and  strength  of  body,  with  intent  him  the  said  A.,  by  the  means 
aforesaid,  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  to  kill  and   murder,  and   other  wrongs  to  him  the 

term  of  the  White  Ch-cuit  Court,  and  found  guilty ;  and  a  motion  made  in  arrest 
of  judgment,  which  was  overruled. 

"  The  errors  assigned  bring  into  full  view  such  parts  of  the  record  as  require 
particular  attention  from  the  court,  and  are  as  follows  :  1.  The  facts  set  forth  in 
the  indictment  below  do  not  constitute  the  offence  with  which  said  Nixon  was 
charged.  2.  The  indictment  does  not  sufficiently  describe  the  place  where 
Adam  was  abandoned,  so  as  to  show  that  death  would  probably  have  been 
caused  by  such  abandonment.  3.  The  indictment  does  not  sufficiently  set  forth 
the  means  by  which  the  offence  charged  was  committed.  4.  The  court  erred  in 
refusing  the  motion  for  a  new  trial. 

"This  indictment  was  brought  under  a  statute  of  this  State  (R.  L.  180,  §  52; 
Gale's  Stat.  206),  which  provides,  that  an  assault  with  an  intent  to  commit  mur- 
der shall  subject  the  offender  to  confinement  in  the  penitentiary  for  a  term  not 
less  than  one  yeai-,  nor  more  than  fourteen  years.  This  indictment  has  every  in- 
gredient necessary  to  constitute  a  good  one,  under  this  statute.  The  offence  is 
well  set  out.  There  may  be  a  thousand  forms  of  deaths  by  which  human  nature 
may  be  overcome,  by  poisoning,  starving,  drowning,  &c.  This  differs  from  most 
ca.ses  of  assault  with  intent  to  commit  murder ;  it  is  more  malignant,  and  dis- 
covers more  depravity.  But  if  one  assault  with  intent  to  commit  murder  differs 
from  another,  it  makes  it  no  less  a  crime.  This  one  seems  to  be  of  a  very  atro- 
cious character." 

242 


ASSAULTS.  (231) 

said  A.  then  and  there  did,  to  the  great  damage  of  him  the  said 
A.,  against,  &c.     ( Conclude  as  in  hook  1,  chapter  3.) 

(229)  For  ihroiving  corrosive  fluid,  with  intent,  ^c.(^a) 

The  jurors,  &c.,  upon  their  oath  present,  that  C.  D.,  late  of  B., 
in  the  County  of  S.,  laborer,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  with  force  and   arms,  at  B.  aforesaid,  in  the 

county  aforesaid,  in  and  upon  one  A.  B.  did  make  an  assault,  and 
then  and  there  unlawfully  and  maliciously  did  cast  and  throw 
upon  the  said  A,  B.  a  certain  corrosive  fluid,  to  wit,  one  pint  of 
oil  of  vitriol,  with  intent,  in  so  doing,  then  and  there  and  thereby 
the  said  A.  B.  to  burn,  and  the  said  A.  B.  thereby  then  and  there 
did  grievously  burn,  against  the  peace  of  said  commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

(230)   ISeefor  ''Assaults  with  intent,'' ^c.,  post,  242,  ^-c.,  1046,  ^c.] 

(231)  Assault  with  beating  and  wounding  on  the  high  seas. 

The  jurors  of  the  said  United  States,  within  and  for  the  said 
district,  upon  their  oath  present,  that  C  W.  C,  mariner,  and  C. 
G.  A.,  both  late  of  Nantucket,  in  said  district,  on,  &c.,  in  and 
on  board  of  a  certain  ship  or  vessel  called  the  "J.  M.,"  then  lying 
within  the  jurisdiction  of  a  foreign  state  or  sovereign,  to  wit,  in 
the  port  of  Paita,  in  Peru,  the  said  "J.  M."  then  and  there  being 
an  American  ship  or  vessel  belonging  to  certain  persons,  citizens 
of  the  United  States,  whose  names  to  the  jurors  aforesaid  are  as 
yet  unknown,  with  force  and  arms,  an  assault  did  make  in  and 
upon  one  T.  B.,  and  him  the  said  B.  then  and  there,  from  malice, 
hatred,  and  revenge,  and  without  justifiable  cause,  did  beat  and 
wound,  he  the  said  C.  then  and  there  being  the  chief  mate  of  said 
ship  or  vessel,  he  the  said  A.  then  and  there  being  the  third  mate 
of  said  ship  or  vessel,  and  he  the  said  B.  then  and  there  being 
one  of  the  crew  thereof,  against,  &c.,  and  contrary,  &c.  ( Con- 
clude as  in  book  1,  chapter  3.) 

(a)  Arclibold's  C.  P.  (ed.  1853),  537.  This  is  good  at  common  law.  See  also 
K.  V.  Crawford,  1  Den.  C.  C.  100,  2  C.  &  K.  129,  for  assault  with  throwing  of 
boiling  water. 

243 


(232)  OFFENCES    AGAINST    THE    PERSON. 

(232)  Assault  on  high  seas^  hy  hhidwg  the  p'osecutor  and  forcing 
an  iron  holt  down  his  throat. 
And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  the  said  C.  W.  C.  and  C.  G.  A.,  both  late  of  Nan- 
tucket, in  said  district,  on,  &c.,  in  and  on  board  of  a  certain  ship 
or  vessel  called,  &c.,  then  lying  within  the  jurisdiction  of  a  for- 
eign state  or  sovereign,  to  wit,  in  the  port  of  Paita,  in  Peru,  the 
said  "J.  M."  then  and  there  being  an  American  ship  or  vessel 
belonging  to  certain  persons,  citizens  of  the  United  States,  whose 
names  to  the  jurors  aforesaid  are  as  yet  unknown,  with  force  and 
arms,  an  assault  did  make  in  and  upon  one  T.  B.,  and  him  the 
said  B.  then  and  there,  from  malice,  hatred,  and  revenge,  and 
without  justifiable  cause,  did  bind  and  imprison,  and,  being  so 
bound  and  imprisoned,  did  force  into  the  mouth  and  between  the 
teeth  of  him  the  said  B.,  with  great  force  and  violence,  an  iron 
bolt  called  a  pump  bolt,  and  the  same  bolt  did  then  and  there 
bind  and  tie  in  the  mouth  and  between  the  teeth  of  him  the  said 
B.,  and  by  the  said  forcing  of  the  said  bolt  into  the  mouth  and 
between  the  teeth  of  said  B.  did  bruise  and  lacerate  the  lips  and 
gums  of  said  B.,  which  said  forcing  of  said  bolt  into  the  mouth 
and  between  the  teeth  of  said  B.,  and  so  binding  and  tying  the 
same  therein,  was  a  cruel  and  unusual  punishment;  he  the  t^aid 

B.  then  and  there  being  one  of  the  crew  of  the  said  ship,  and 
they  the  said  C.  W.  C.  and  C.  G.  A.  being  officers  thereof,  to 
wit,  the  said  C.  being  then  and  there  the  first  mate,  and  the  said 
A.  being  then  and  there  third  mate  of  said  ship;  against,  &c., 
and  contrary,  &c.     ( Concede  as  in  book  1,  chapter  3.) 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  afterwards,  to  wit,  on,  &c.,  the  said  C.  W.  C.  and 

C.  G.  A.  were  first  apprehended  in  said  District  of  Massachu- 
setts, to  wit,  at  Boston,  which  was  the  district  in  which  the  said 
C.  and  A.  were  first  apprehended  after  the  commission  of  the 
offence  aforesaid,  (l) 

(233)  Stabbing  with  indent  to  wound,  under  Ohio  Stat.  p.  49,  §  6. 
That  A.  B.,  on  the  nineteenth  day  of  August,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  fifty,  in  the  County 
(/)   See  post,  925,  &c.,  for  further  forms  on  this  head. 
244 


ASSAULTS.  (235) 

of  Hamilton  aforesaid,  in  and  upon  one  M.  N.,  then  and  there 
being,  did  unlawfully  and  maliciously  make  an  assault,  and  with 
a  certain  knife,  which  he,  the  said  A.  B.,  then  and  there  in  his 
right  hand  had  and  held,  him,  the  said  M.  N.,  did  then  and  there 
unlawfully  and  maliciously  stab,  thereby,  then  and  there,  giving 
to  him  the  said  M.  N.,  in  and  upon  the  right  shoulder  of  him, 
the  said  M.  N.,  one  wound,  of  the  length  of  one  inch,  and  of  the 
depth  of  two  inches,  with  intent  then  and  there  him,  the  said  M. 
N.,  maliciously  to  wound,  contrary,  &c.  [Conclude  as  in  book  1, 
cliapter  3.)  (a) 

(234)  Shooting  with  intent  to  wound,  under  Ohio  Stat.  p.  49,  §  6. 

That  A.  B.,  on  the  twenty-second  day  of  June,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  fifty-three,  in  the 
County  of  Licking  aforesaid,  with  a  certain  pistol,  then  and 
there,  loaded  with  gunpowder  and  other  destructive  materials, 
which  said  pistol  he,  the  said  A.  B.,  then  and  there  in  his  right 
hand  had  and  held,  at  and  against  a  certain  person  to  the  depo- 
nent [o?-  jurors,  as  the  case  may  be'\  aforesaid  unknown,  then  and 
there  feloniously  and  maliciously  did  shoot,  with  intent  then  and 
there  and  thereby,  feloniously  and  maliciously,  the  said  person  to 
the  deponent  unknown  to  wound,  contrary,  &c.  (Conclude  as  in 
book  1,  chapter  o.){b) 

(235)  Assault  on  high  seas,  with  dangerous  iveapon. 

That  late  of  the  City  and  County  of  New  York,  in  the 

district  aforesaid  [state  occupation),  heretofore,  on,  &c.,  with  force 
and  arms,  on  the  high  seas,  out  of  the  jurisdiction  of  any  par- 
ticular state  of  the  said  United  States  of  America,  on  waters 
within  the  admiralty  and  maritime  jurisdiction  of  the  said  United 
States,  and  within  the  jurisdiction  of  this  court,  in  and  on  board 
of  a  certain  American  vessel,  being  a  called  the  be- 

longing in  whole  or  in  part  to  a  citizen  or  citizens  of  the  said 
United  States,  whose  name  or  names  are  to  the  said  jurors  un- 
known, with  a  dangerous  weapon,  to  wit,  with  a  [state  particu- 
larly the  weapon  and  dimensions  of  the  same),  in  and  upon  one 

(a)  Warren's  C.  L.  54.     The  offence  is  a  misdemeanor,  not  a  felony.     U.  S. 
V.  Gallagher,  2  Paine  C.  C.  R.  447. 
(6)  Warren's  C.  L.  56. 

245 


(236)  OFFENCES    AGAINST   THE   PERSON. 

in  the  peace  of  God  and  of  the  said  United  States,  then 
and  there  being  in  and  on  board  of  said  called  the 

feloniously  did  commit  an  assault,  to  the  great  damage  of  the 
said  against,  &c.,  and  against,  &c.     [Conclude  as  in  book 

1,  chapter  3.) 

Second  count. 

That  the  said  heretofore,  on,  &c.,  in  and  on  board  of  a 

certain  Arnerican  vessel,  being  a  called  the  then  and 

there  belonging  and  appertaining  to  a  certain  person  or  persons, 
then  and  still  being  a  citizen  or  citizens  of  the  said  United  States, 
whose  name  or  names  are  to  the  said  jurors  unknown,  with  force 
and  arms,  on  the  high  seas,  in  and  on  board  said  out  of  the 

jurisdiction  of  any  particular  state  of  the  said  United  States,  on 
waters  within  the  admiralty  and  maritime  jurisdiction  of  the 
said  United  States,  and  within  the  jurisdiction  of  this  court,  with 
a  dangerous  weapon,  to  wit,  with  a  {repeat  description  and  dimen- 
sions as  in  first  count),  m  and  upon  one  belonging  to  the 
company  of  said  vessel,  being  a  called  the  in  the 
peace  of  God  and  of  the  said  United  States,  then  and  there 
being  feloniously  did  make  an  assault,  he  the  said 
being  one  of  the  company  of  the  said  to  the  great  damage 
of  the  said  against,  &c.,  and  against,  &c.  [Conclude  as 
in  book  1,  chapter  3.) 

Third  count. 

Like  second  count,  inserting-  after  "being  one  of  the  company 

of  the  said  ,"  and  before  "  to  the  great  damage  of  the  said 

,"  "  and  other  wrongs  to  the  said  then   and  there 

did." 

Last  count. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  the  Southern  District  of  New  York  [or  otherwise) , 
in  the  Second  Circuit,  is  the  district  and  circuit  in  which  the  said 
was  first  apprehended  for  the  said  offence. 

(236)  Another  form  for  same. 

That  late  of  the  City  and  County  of  New  York,  in  the 

circuit  and  district  aforesaid,  heretofore,  to  wit,  on,  &c., 

with  force  and  arms,  on  the  high  seas  [or,  as  the  case  may  be),  on 
246 


ASSAULTS.  (236) 

waters  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States  of  America,  out  of  the  jurisdiction  of  any  par- 
ticular state  of  the  said  United  States,  and  within  the  jurisdic- 
tion of  this  court,  in  and  on  board  of  a  certain  vessel,  being  a 
called  the  belonging  and  appertaining  to  a  certain 

person  or  persons,  whose  names  are  to  the  said  jurors  unknown, 
then  and  still  being  a  citizen  or  citizens  of  the  United  States  of 
America,  with  a  dangerous  weapon,  called  a  {describe  the 

dimensions)^  in  and  upon  one  in  the  peace  of  God  and  of 

the  said  United  States,  then  and  there  being,  feloniously  did  make 
an  assault,  and  other  wrongs  to  the  said  then  and  there  did, 

to  the  great  damage  of  the  said  against,  &c.,  and  against, 

&c.     ( Conclude  as  in  book  1,  chapter  3.) 

Second  count. 

That  the  said  late  of  the  City  and  County  of  New  York, 

in  the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on, 

&c.,  with  force  and  arms,  on  the  high  seas,  on  waters  within  the 
admiralty  and  maritime  jurisdiction  of  the  United  States  of 
America,  out  of  the  jurisdiction  of  any  particular  state  of  the 
said  United  States,  and  within  the  jurisdiction  of  this  court,  in 
and  on  board  of  a  certain  vessel,  being  a  called  the 

belonging  and  appertaining  to  a  certain  person  or  persons,  whose 
names  are  to  the  said  jurors  unknown,  then  and  still  being  a 
citizen  or  citizens  of  the  United  States  of  America,  with  a 
dangerous  weapon,  called    a  {describe  as  before),  in  and 

upon  one  in   the  peace  of  God  and   of  the    said   United 

States,  then  and  there  being,  and  also  then  and  there  being  mas- 
ter {or  othenvise)  of  the  said  vessel,  being  a  called  the 
feloniously  did  make  an   assault,  and  other  wrongs  to  the  said 

then  and  there  did,  to  the  great  damage  of  the  said 
against,  &c.,  and  against,  &c.     ( Conclude  as  in  book  1,  chap- 
ter 3.) 

Last  count. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  the  Southern  District  of  New  York,  in  the  Second 
Circuit,  is  the  circuit  and  district  into  which  the  said  was 

first  brought,  and  in  which  he  was  first  apprehended  for  the  said 
offence. 

247 


(238)  OFFENCES   AGAINST   THE    PERSON. 

(237)  Tlie  same  in  a  foreign  port^  the  ivea-pon  heing  a  Spanish  knife. 
That  heretofore,  to  wit,  on,  &c.,  on   board  of  a  certain  vessel, 

to  wit,  the  brig  "  Volta,"  belonging  to  a  citizen  and  citizens  of 
the  United  States,  whose  name  or  names  are  to  tins  inquest  un- 
known, while  lying  in  a  port,  to  wit,  the  port  of  Rio  de  Janeiro, 
within  the  jurisdiction  of  a  foreign  state,  to  wit,  of  Brazil,  to  wit, 
at  the  Eastern  District  of  Pennsylvania  aforesaid,  and  within  the 
jurisdiction  of  this  court,  a  person,  to  wit,  one  S.  T.,  then  and 
there  being  a  person  belonging  to  the  company  of  the  said  vessel, 
did  then  and  there,  with  a  dangerous  weapon,  to  wit,  a  Spanish 
knife,  commit  an  assault  on  another  person,  to  wit,  one  W.  A. 
E-.,  then  and  there  belonging  to  the  company  of  the  said  vessel, 
and  other  wrongs  to  him  the  said  W,  A.  R.,  be  the  said  S.  T., 
then  and  there  unlawfully,  violently,  and  maliciously  did,  to  the 
great  damage  of  him  the  said  W.  A.  R.,  contrary,  &c.,  and 
against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(238)  tSeco7id  count  same  as  first,  charging  the  instrument  as  fol- 

lows :  — 

"  With  a  dangerous  weapon,  to  wit,  a  sharp  cutting  instru- 
ment." 

(239)   Third  count.     Assault  with  intent  to  kill. 

That  at,  &c.,  on,  &c.,  on  board  of  a  certain  vessel,  to  wit,  the 
brig  "  Volta,"  belonging  to  a  citizen  and  citizens  of  the  United 
States,  while  lying  in  a  port,  to  wit,  the  port  of  Rio  de  Janeiro, 
within  the  jurisdiction  of  a  foreign  state,  to  wit,  of  Brazil,  to 
wit,  at  the  Eastern  District  of  Pennsylvania  aforesaid,  and  within 
the  jurisdiction  of  the  court  aforesaid,  a  person,  to  wit,  one  S.  T., 
then  and  there  being  a  person  belonging  to  the  company  of  the 
said  vessel,  did  then  and  there,  with  intent  to  kill  a  person,  to 
wit,  one  W.  A.  R.,  then  and  there  belonging  to  the  con)pany  of 
the  said  vessel,  did  then  and  there  commit  an  assault  on  the  said 
W.  A.  R.,  then  and  there  belonging  to  the  company  of  said  ves- 
sel as  aforesaid,  and  other  wrongs  to  him  the  said  W.  A.  R.,  he 
the  said  S.  T.,  then  and  there  unlawfully,  violenlly,  wickedly,  and 
maliciously  did,  to  the  great  damage  of  him  the  said  W.  A.  R., 
contrary,  &c.,  and  against,  &c.  (  Conclude  as  in  book  1,  chapter  3.) 
248 


ASSAULTS.  (240) 

(^Final  count  as  17,  ^<?.)(/^) 

(240)  Assault  and  false  imprisonment  at  common  law.(yn') 

That  J.  S.,  late  of  the  parish  of  B.,  in  the  County  of  M.,  la- 
borer, on,  &c.,\vith  force  and  arms,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  in  and  upon  one  J.  N.,  in  the  peace  of  God 
and  of  the  said  state,  then  and  there  being,  did  make  an  assault, 
and  him  the  said  J.  N.  then  and  there  unlawfully  and  injuriously, 
and  against  the  will  of  the  said  J.  N.,  and  also  against  the  laws 
of  this  state,  and  without  any  legal  warrant,  authority,  or  reason- 
able or  justifiable  cause  whatsoever,  did  imprison,  and  detain  so 
imprisoned  there,  for  a  long  space  of  time,  to  wit,  for  the  space 
of  ten  hours  then  next  following,*  and  other  wrongs  to  the  said 
J.  N.  then  and  there  did,  to  the  great  damage  of  the  said  J.  N., 
and  against,  &c.     [If  any  money  ivere  extorted  from  the  prosecu- 

(/l)  In  1  7  and  18  the  final  counts  are  given  in  cases  where  the  offender  was 
either  first  brought  or  first  apprehended  within  the  particular  district  in  wliich 
the  indictment  is  found.  These  counts,  one  of  which  is  necessary  in  all  cases 
where  the  offence  was  committed  within  mere  admiralty  jurisdiction,  are  varied 
in  phraseology  in  the  several  circuits,  and  would  seem,  in  fact,  with  their  several 
modifications,  to  be  used  indiscriminately  in  cases  where  the  offender  is  either 
first  brought  or  first  apprehended,  &c.  The  following  forms,  in  addition  to  those 
in  the  text,  are  of  frequent  occurrence  :  — 

That  afterwards,  to  wit,  &c.,  the  said  A.  B.  was  first  brought  into  S.  in  said 
district,  and  that  the  said  District  of  M.  is  the  district  into  which  he  was  first 
brought  after  committing  the  offence  aforesaid. 

That  the  Southern  District  of  New  York  is  the  district  in  which  the  said  A. 

B.  was  first  brought  and  apprehended  for  the  said  offence. 

That  the  said  A.  B.,  &c.,  after  the  commission  of  the  said  offence,  to  wit,  on, 
&c.,  was  first  brought  into  the  said  M.  District,  and  that  the  said  M.  is  the  district 
into  which  the  said  offender  was  first  brought  as  aforesaid.     Davis'  Prec.  224. 

ITiat  the  said  C.  D.,  the  offender  aforesaid,  was  first  brought  into  B.  afore- 
said, in  the  district  of  after  the  commission  of  said  offence,  and  that  the 
said  district  of                   is  the  district  into  which  he  was  first  brought.     Lewis' 

C.  L.  645. 

See,  for  other  forms  of  same,  177,  178,  179,  180. 

Where  the  offender  is  out  of  the  jurisdiction,  and  the  bill  is  found  for  the 
purpose  of  issuing  a  bench  warrant,  of  course  the  final  count  is  to  be  omitted. 
(to)  Arch.  C.  P.  5th  Am.  ed.  558. 

249 


(242)  OFFENCES   AGAINST    THE    PERSON. 

tor  for  setting-  him  at  liberty^  add  an  averment  of  it  immediately 
after  the  above  asterisk,  as  thus)  :  And  until  lie  the  said  J.  N.  had 
paid  to  the  said  J.  S.  the  sum  of  five  dollars  of  the  moneys  of  the 
said  J.  N.,  for  his  enlargement;  and  other  wrongs,  &c.  (Add  a 
count  for  a  common  assaidt.) 

(241)  Assaidt  ayid  false  imprisonment^  ivith  the  ohtainiyig  of  five 
dollars.  (^If  there  he  no  extortion,  the  paragraph  in  brackets 
can  he  omitted.} (^n') 

That  A.  B.,  of,  &c.,  on,  &c.,  at,  &c.,  with  force  and  arms,  in  and 
upon  one  E.  F.  did  make  an  assault,  and  him  the  said  E.  F.  then 
and  there  unlawfully  and  injuriously,  and  against  the  will  and 
without  the  consent  of  the  said  E.  F.,  and  also  against  the  laws 
of  this  state,  without  any  legal  warrant,  authority,  or  justifiable 
cause  whatsoever,  did  imprison  and  detain  for  a  long  time,  to 
wit,  for  the  space  of  hours  then   next  following  (and  until 

he  the  said  E.  F.  had  paid  to  him  the  said  A.  B.  the  sum  of  five 
dollars,  lawful  money  of  the  United  States,  of  the  moneys  of  the 
said  E.  F.  for  his  enlargement),  and  other  wrongs  to  the  said  E. 
F.  then  and  there  did,  to  the  great  damage  of  the  said  E.  F., 
against,  &c.  (If  a  7iote  ivas  obtained,  instead  of  a  sum  of  money, 
insert  instead  of  the  above  passage  in  brackets) :  And  until  he  the 
said  E.  F.,  for  his  delivery  from  the  said  imprisonment,  had 
signed  and  given  to  the  said  A.  B.  a  note  under  the  hand  of  the 
said  E.  F.,  whereby  he  the  said  E.  F.  promised  to  pay  to  the  said 
A.  B.  the  sum  of  ten  dollars,  &c. 

(242)  Assault  with  intent  to  murder  at  common  law.(o') 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  with  a  certain  drawn  sword, 
which  he  the  said  A.  B.  in  his  right  hand  then  and  there  had  and 
held,  in  and  upon  one  S.  W.  did  make  an  assault,  with  an  intent 
him  the  said  S.(o^)  then  and  there  feloniously,  wilfully,  and  of  his 

(n)   Stark.  C.  P.  428. 

(o)  Stark.  C.  P.  430.  See  for  a  form  of  assault  with  intent  to  murder,  &c., 
ante,  238.  Indictments  for  assaults  with  intent,  &c.,  do  not  require  the  par- 
ticularity needed  in  setting  forth  the  overt  act.     Wh.  C.  L.  §  1281. 

(oi)  This  repetition  of  the  name  of  the  injured  party  is  necessary.     State  v. 
Patrick,  3  Wis.  812. 
250 


ASSAULTS.  (244) 

malice  aforethought, (o^)  to  kill  and  murder,(o^)  and  other  wrongs 
to  the  said  S.  W.  then  and  there  did,  against,  &c.(o*) 

(243)  Another  form  for  same,  in  Neiv  York. 

That  at  on,  &c.,  with  force  and  arms,  to  wit,  with 

knives,  hatchets,  and  tomahawks,  in  and  upon  one  E.  G.,  of 
&c.,  in  the  peace  of  the  people,  then  and  there  being,  did  make 
an  assault,  and  with  intent  to  commit  murder  on  the  said  E.  G., 
did  then  and  there  cut,  beat,  strike,  wound,  and  evil  treat  him 
the  said  E.  G.,  and  other  wrongs  to  the  said  E.  G.  then  and 
there  did,  to  the  damage  of  the  said  E.  G.,  and  against,  &c.(  jo) 
( Conclude  as  in  book  1,  chapter  3.) 

(244)  Assault  with  mtent  to  d?-own.(^q) 

That  A.  B.,  of  in  the  County  of  laborer,  on 

with  force  and  arms,  at  in  the  county  aforesaid,  in  and  upon 

the  body  of  one  C.  D.,  with  a  dangerous  weapon,  to  wit,  with  a 
large  stick,  which  he  the  said  A.  B.  in  both  his  hands  then  and 
there  had  and  held,  did  make  an  assault,  and  him  the  said  C.  D. 
did  then  and  there  beat,  wound,  and  abuse  ;  and  that  he  the  said 
A.  B.,  with  both  his  hands,  did  then  and  there  unlawfully,  vio- 

(02)  This  is  generally  necessary.  Wli.  C.  L.  §  1285  ;  State  v.  Harris,  34  Mis. 
347.  See  State  v.  Murphy,  21  Ind.  441.  The  word  "  unlawfully  "  may  be 
omitted.     lb. 

(03)  «  To  commit  manslaughter  "  is  here  inadequate.  Bradley  r.  State,  10  S. 
&M.  618. 

(ci4)  For  assault  with  intent  to  kill,  in  the  United  States  Courts,  see  ante, 
239. 

(p)  People  V.  Pettit,  3  Johns.  E.  511.  This  indictment  was  attacked,  1st, 
because  it  did  not  charge  the  offence  to  have  been  committed  feloniously ;  2d, 
because  the  instruments  were  not  accurately  described ;  and  3d,  because  the 
intent  was  not  set  out  with  sufficient  precision.  ^^  Per  curiam  :  The  intent  to 
commit  murder  was  here  charged  in  the  words  of  the  statute,  and  we  think  that 
was  sufficient.  The  indictment  is  for  an  assault  and  battery,  and  the  quo  animo 
is  to  be  collected  from  the  circumstances.  It  was  enough  to  state,  with  the  usual 
precision,  the  facts  requisite  to  constitute  an  assault  and  battery,  and  to  aver  the 
intent  with  which  it  was  made.  The  indictment  required  no  other  facts  than 
were  necessary  to  establish  an  assault  and  battery.  The  crime  charged  was, 
after  all,  but  a  misdemeanor.  It  was  not  a  felony,  though  the  intent  was  to  com- 
mit one."  This  indictment,  however,  is  defective  at  common  law,  and  only  good 
when  sustained  by  local  statute.     See  (243)  and  notes. 

(q)  Davis'  Prec.  66. 

251 


I 


(246)  OFFENCES    AGAINST   THE    PERSON. 

lently,  and  maliciously  cast,  push,  and  throw  the  said  C.  D.  into 
a  certain  pond  there  situate  and  being,  wherein  there  was  a  large 
quantity  of  water,  and  did  then  and  there  keep,  press  down,  and 
confine  the  said  C.  D.  in  and  under  the  said  water  for  the  space 
of  five  minutes,  with  intention  him  the  said  C.  D.  then  and  there 
feloniously,  wilfully,  and  of  his  malice  aforethought,  to  suffocate 
and  drown  in  the  said  water;  and  him  the  said  C.  D.,  by  means 
thereof,  wilfully,  feloniously,  and  of  his  malice  aforethought,  to 
kill  and  murder ;  and  other  wrongs  to  the  said  C  D.  then  and 
there  did,  to  the  great  damage  of  him  the  said  C.  D.,  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(245)  Assault  tvith  intent  to  murder,  under  the  Neiv  York  Rev.  Stat. 

That  E.  L.,  late  of  the  First  Ward  of  the  City  of  New  York, 
in  the  County  of  New  York  aforesaid,  laborer,  on  the  day 

of  /  in  the  year,  &c.,  with  force  and  arms,  at  the  ward,  city, 

and  county  aforesaid,  in  and  upon  N.  J.,  then  and  there  being, 
feloniously  did  make  an  assault,  and  him  the  said  N.  J.,  with  a 
certain  knife,  which  the  said  E.  L.  in  his  right  hand  then  and 
there  had  and  held  (the  said  knife  being  a  deadly  weapon),  felo- 
niously did  beat,  strike,  ,  cut,  and  wound,  with  intent  hira 
the  said  N.  J.  then  and  there  feloniously  and  wilfully  to  kill,  and 
other  wrongs  to  the  said  N.  J.  then  and  there  did,  to  the  great 
damage  of  the  said  N.  J.  ;  against,  &c.,  and  against,  &c.  [Con- 
clude as  in  book  1,  chapter  3.) 

(246)  Second  count.      With  intent  to  maim. 

That  the  said  E.  L.,  on  the  said  day  of  in  the  year 

last  aforesaid,  with  force  and  arms,  at  the  ward,  city,  and  county 
aforesaid,  in  and  upon  the  said  N.  J.,  then  and  there  being,  felo- 
niously did  make  another  assault,  and  him  the  said  N.  J.,  with  a 
certain  knife,  which  he  the  said  E.  L.  in  his  right  hand  then  and 
there  had  and  held,  the  said  knife  being  a  deadly  weapon,  feloni- 
ously did  beat,  strike,  cut,  and  wound,  with  intent  him  the 
said  N.  J.  then  and  there  feloniously  and  wilfully  to  maim, 
against,  &c.,  and  against,  &c.  (  Conclude  as  in  book  1,  chapter  3.) 
252 


ASSAULTS.  (248) 

(247)  Assault  with  intent  to  commit  a  felony  generally. (r) 
That  A.  B,,  &c.,  at,  &c.,  aforesaid,  in  and  upon  one  J.  N.,  in 
the  peace  of  God  and  of  our  lady  the  queen,  then  and  there  be- 
ing, unlawfully  did  make  an  as^sault,  and  him  the  said  J.  N.  then 
and  there  did  beat,  wound,  and  ill-treat,  [with  intent(r()  [liere  state 
the  felony  intended  thus) :  him  the  said  J.  N.  then  and  there  felo- 
niously, wilfully,  and  of  his  malice  aforethought,  to  kill  and  mur- 
der,] and  other  wrongs  to  the  said  J.  N.  then  and  there  did,  to  the 
great  damage  of  the  said  J.  N.  ;  against  the  form  of  the  statute 
in  such  case  made  and  provided,  and  against,  &c.  [Add  a  count 
for  coimnon  assault.) 

(248)  Felonious  assaidt  under  the  Massachusetts  statute. (^s~) 

That  A.  B.,  of  B.  aforesaid,  yeoman,  on,  &c.,  at  B.  aforesaid, 
with  force  and  arms,  the  said  A.  B.  then  and  there  being  armed 
with  a  dangerous  weapon,  to  wit,  a  sword,  in  and  upon  one  E. 
F.,  then  and  there,  in  the  peace  of  said  commonwealth  being, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  an  assault 
did  make,  with  intent  him  the  said  E.  F.  to,  &c.,  and  by  so  do- 
ing, and  by  force  of  the  statute  in  such  case  made  and  provided, 
he  the  said  A.  B.  is  deemed  a  felonious  assaulter.  And  so  the 
jurors  aforesaid,  on  their  oath  aforesaid,  do  say  and  present,  that 
the  said  A.  B.,  at  B.  aforesaid,  on,  &c.,  with  force  and  arms,  felo- 

(r)  This  form  is  given  by  Mr.  Archbold,  C.  P.  5th  Am.  ed.  544,  as  good  im- 
der  the  stat.  9  Geo.  IV.  c.  31,  s.  25,  which  enacts,  that  any  person  who  shall  be 
convicted  "  of  any  assault  to  commit  felony,"  shall  be  punished,  &c.  As  will  be 
seen  by  a  comparison  of  this  statute  with  that  in  New  York  (2  Rev.  Stat.  665, 
666,  §  30),  the  indictment  in  the  text  will  be  good  in  that  State  in  the  particular 
cases  provided  for.  As  a  rule,  it  is  enough  to  state  the  intent  generally.  Wh. 
C.  L.  §  1281. 

(a)  If  necessary  the  intent  and  all  that  follows  in  brackets  may  be  discharged 
as  surplusage.     Wh.  C.  L.  §§  392,  616,  629. 

(i-)  An  assault  with  an  intent  to  murder  was  not  a  felony  under  the  statute, 
and  consequently  the  word  "  feloniously "  should  not  be  admitted,  and  this 
though  the  statute  provides  that  the  defendant  shall  be  deemed  a  felonious  as- 
saulter. Com.  V.  Barlow,  4  Mass.  439.  It  would  seem,  however,  that  if  the 
term  be  improperly  used,  it  may  be  rejected  as  surplusage.  Com.  v.  Squire,  1 
Met.  258.  See  Wh.  C.  L  §  400.  But  now,  by  stat.  1852,  ch.  37,  it  is  a  felony. 
See  Com.  v.  Chapman,  7  Bost.  Month.  Law  Rep.  N.  S.  155;  11  Gush.  422. 

263 


(251)  OFFENCES    AGAINST   THE    PERSON. 

niously  assaulted  the  said  E.  F.,  in  manner  and  form  aforesaid,* 
against,  &c.,  and  contrary,  &c.    ( Conclude  as  in  book  1,  chapter  3.) 

(249)  Assault  loith  intent  to  murder  in  South  Carolina. 

That  A.  B.,  on,  &c.,  with  force  and  arms,  at  in  the  dis- 

trict of  and  State  aforesaid,  in  and  upon  E.  F.,  in  the  peace 

of  God  and  of  the  said  State  aforesaid,  then  and  there  being,  did 
make  an  assault,  and  him  the  said  E.  F.  did,  &c.,  with  intent 
him  the  said  E.  F.  then  and  there  feloniously,  wilfully,  and  of 
his  malice  aforethought,  to  kill  and  murder,  and  other  wrongs  to 
the  said  E.  F.  then  and  there  did,  to  the  great  damage  of  the 
said  E.  F.,  and  against,  &c.     {Conclude  as  in  book  1,  chapter  3.) 

(250)  Felonious  assault,  with  intent  to  rob,  heing  armed.     Rev.  Sts. 
of  iMass.  eh.  125,  §  14. 

That  C.  D.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  with  force  and 

arms,  at  B.  aforesaid,  in  the  county  aforesaid,  the  said  C.  D.  be- 
ing then  and  there  armed  with  a  certain  dangerous  weapon,  to 
wit,  an  axe,  in  and  upon  one  J.  N.  feloniously,  and  with  force 
and  violence,  did  make  an  assault,  with  intent  the  moneys,  goods, 
and  chattels  of  the  said  J.  N.,  from  the  person  and  against  the 
will  of  the  said  J.  N.,  then  and  there  feloniously,  and  by  force  and 
violence,  and  by  assault  and  putting  in  fear,  to  rob,  steal,  take, 
and  carry  away ;  against  the  peace,  &c.,  and  contrary  to  the 
form,  &c. 

(251)  Assault  with  intent  to  rob,  against  two.(f) 

That  the  prisoners,  on,  &c.,  at,  &c.,  in  and  upon  R.  B.,  in  the 
peace  of  God  and  our  said  lady  the  queen,  then  and  there  being, 
feloniously  did  together  make  an  assault  with  intent  the  moneys, 
goods,  and  chattels  of  the  said  R.  B.,  from  the  person  and  against 
the  will  of  him  the  said  R.  B.,  then  and  there  feloniously  and  vio- 
lently to  rob,  steal,  take,  and  carry  away,  against,  &c.  {Conclude 
as  in  book  1,  chapter  3.) 

(/)  R.  V.  Huxley,  1  C.  &  M.  596.  This  appears  to  be  the  form  used  in  the 
Central  Criminal  Court,  and  was  sustained  by  Patteson  and  Creswcll,  JJ.,  in  the 
above  case. 

254 


ASSAULTS.  (2-55) 

(252)  Another  form  for  same.(v') 
That  defendants,  late  of  the  said  county,  on,  &c,,  in  the  county 
of  C.  aforesaid,  in  and  upon  the  person  of  G.  H.  G.,  in  the  peace 
of  the  people  of  the  State  of  Illinois,  then  and  there  being,  with 
force  and  arms,  did  make  an  assault,  with  an  intent,  then  and 
there,  unlawfully,  wilfully,  and  feloniously  to  commit  a  robbery, 
and  other  wrongs  to  the  said  G.  H.  G.  did,  then  and  there,  &c. 

(253)  AsHdiilt  with  intent  to  ravish. (y) 

That  A.  B.,  i&c,  on,  &c.,  at,  &c.,  on  one  E.  F.  did  make  an 
assault,  and  her  the  said  E.  F.  then  and  there  did  beat,  wound, 
and  ill-treat,  so  that  her  life  was  greatly  despaired  of,  with  an 
intent  her  the  said  E.  F.,  against  her  will,  then  and  there  feloni- 
ously(y^)  to  ravish  and  carnally  know,  and  other  wrongs  to  her 
the  said  E.  F.  then  and  there  did,  against,  &c.  {Conclude  as  in, 
book  1,  chapter  3.) 

(254)  Same  under  Rev.  Sts.  of  Mass.  ch.  125,  §  19. 

That  C.  D.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  with  force  and 

arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon  one 
J.  N.  feloniously  did  make  an  assault,  with  intent  the  said  J.  N. 
then  and  there  feloniously  to  ravish  and  carnally  know,  by  force 
and  against  her  will ;  against  the  peace  &c.,  and  contrary,  &;c. 

(255)  Assaidt  tvith  intent  to  rape  under  Ohio  Stat.  p.  48,  §  4.  (a) 

That  A.  B.,  late  of  the  county  aforesaid,  on  the  twenty-first 
day  of  August,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  thirty-six,  in  the  County  of  Montgomery  aforesaid,  in 
and  upon  one  M.  N.,  then  and  there  being,  did  unlawfully  make 
an   assault,  and    her  the    said   M.  N.  then   and  there  did  beat, 

(w)  ConoUy  i'.  State,  3  Scam.  4  77.  This  form,  though  very  loose,  was  sus- 
tained. 

((•)  Stark.  C.  P.  429.  "  If  the  offence  of  rape,"  remarks  Mr.  Starkie,  "  ap- 
pears to  have  been  actually  committed,  the  prisoner  should  be  acquitted,  since 
the  misdemeanor  merges  in  the  felony.  See  East,  P.  C.  411."  See  also  Wh. 
C.  L.  §  564.  As  to  propriety  of  joining  this  count  with  a  count  for  rape,  see 
Wh.  C.  L.  §§  414-427. 

(u')  This  is  essential.     Means  v.  Com.,  2  Grant,  385. 

(a)  Warren's  C.  L.  59.  255 


(239)  OFFENCES    AGAINST    THK    PKRSON. 

wound,  and  ill-treat,  with  intent  her  th(;  said  M.  N.  violently, 
forcibly,  and  against  her  will,  tlien  and  there,  unlawfully  and 
feloniously  to  ravish  and  carnally  know,  to  the  great  damage  of 
the  said  M.  N. ;  contrary,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(256)  Another  form  for  assault  with  intejit  to  ravish. (w') 

That  W.  S.,  of  the  county  aforesaid,  yeoman,  on,  &c.,  at  the 
county  aforesaid,  and  within  the  jurisdiction  of  this  court,  in  and 
upon  S.  C,  spinster,  in  the  peace  of  God,  then  and  there  being, 
with  force  and  arms,  an  assault  did  make,  with  an  intention  to 
ravish  and  carnally  know  the  said  S.  C,  and  the  said  S.  C.  did 
beat,  wound,  and  evilly  treat,  so  that  her  life  was  greatly  de- 
spaired of,  and  other  harms  to  her  then  and  there  did,  to  the 
great  damage  of  the  said  S.,  and  against,  &c.  [Conclude  as  in 
book  1,  chapter  3.) 

(257)  Same  against  t2V0.(x) 
That  A.  B.,  late,  &c.,  and  C.  D.,  late,  &c,  on,  &c.,  at,  &c.,  in 
and  upon  E.,  the  wife  of  one  H.  S.,  did  make  an  assault,  and 
her  the  said  E.  then  and  there  did  beat,  wound,  and  ill-treat,  so 
that  her  life  was  greatly  despaired  of,  with  intent  that  he,  the  said 
C.  D.,  should  then  and  there  feloniously  and  against  the  will  of 
the  said  E.,  ravish  and  carnally  know  her  the  said  E.,  and  that 
they  the  said  A.  B.  and  C  D.  other  wrongs  to  the  said  E. 
then  and  there  did,  contrary,  <kc.  ( Conclude  as  in  book  1,  chapter 
3.)     [Add  a  count  for  a  common  assault.) 

(259)  For  an  indecent  assault. {b^ 

The  jurors,  &c.,  upon  their  oath  present,  that  C.  D.,  late  of  B., 
in  the  County  of  S.,  laborer,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  at  B.  aforesaid,  in  the  county  aforesaid,  unlaw- 

fully and  indecently  did  make  an  assault  in  and  upon  one  A.  B., 
and  did  then  and  there  unlawfully,  indecently,  and  against  the 

(((i)  Stout  V.  Com.,  11  S.  &  R.  177.  The  omission  of  the  woi-d  "feloniously," 
which  was  the  first  ground  of  exceiation  to  the  indictment,  was  sustained  by  the 
court ;  and  the  want  of  an  averment  of  time  and  place  to  the  concluding  allega- 
tion, Avas  declared  to  be  immaterial,  the  time  and  place  named  in  the  iirst  clause 
qualifying  the  whole  offence. 

(x)   Stark.  C.  P.  429. 

{b)  Tr.  &  H.  Free.  41. 
256 


ASSAULTS.  (-61) 

will  of  the  said  A.  B.,  pull  up  the  clothes  of  the  said  A.  B.,  and 
did  then  and  there  unlawfully,  indecently,  and  against  the  will 
of  the  said  A.  B.,  put  and  place  the  hands  of  the  said  C.  D.  upon 
and  against  the  private  parts  of  the  said  A.  B.  {stating  the  inde- 
cent acts  ivJiich  loill  be  proved  by  the  evidence),  and  other  wrongs 
to  the  said  A.  B.  then  and  there  did ;  against  the  peace,  &c.,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 

(260)  For  an  indecent  assault  with  inteiit  to  have  an  iinproper  con- 
nection.(^c^ 

The  jurors,  &c.,  upon  their  oath  present,  that  C.  D.,  late  of  B., 
in  the  County  of  S.,  physician,  on  the  first  day  of  June,  in  the 
year  of  our  Lord  at  B.,  in  the  County  of  S.,  did  unlawfully 

and  indecently  assault  one  A.  B.,  and  did  then  and  there  unlaw- 
fully and  indecently,  and  against  the  will  of  the  said  A.  B.,  put 
and  place  the  private  parts  of  the  said  C.  D.  against  the  private 
parts  of  the  said  A.  B.,  and  did  then  and  there  otherwise  ill-treat 
and  ill-use  her ;  against  the  peace  of  said  commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 

(261)  For  an  indecent  assault  in  stripping,  (^d^ 

The  jurors,  &c.,  upon  their  oath  present,  that  C.  D.,  late  of  B., 

in  the  County  of  S.,  laborer,  on  the  first  day  of  June,  in  the  year 

of  our  Lord  at  B.,  in  the  County  of  S.,  did  unlawfully  and 

indecently  assault  one  A.  B.,  and  did  then  and  there  unlawfully 

(c)  Tr.  &  H.  Free.  41 ;  6  Cox,  C.  C.  Appendix,  p.  xliii.  The  later  English 
cases  indicate  a  distinction  between  an  assault  with  an  intent  to  ravish  and  an 
assault  with  intent  to  have  an  improper  connection,  which  makes  it  important 
to  have  a  count  for  the  latter  in  all  cases  where  it  is  doubtful  whether  it  was  in- 
tended to  consummate  the  offence  by  force.  Wh.  C.  L.  §§  514-519  ;  II.  v.  Stanton, 
1  C.  &  K.  415  ;  R.  u.  Saunders,  8  Carrington  &  Payne,  265';  Regina  ik  Williams, 
8  Carrington  &  Payne,  286.  The  act,  say  Train  &  Heard,  being  done  fraudu- 
lently will  support  the  averment  that  it  was  against  the  will  of  the  prosecutrix. 
Tliis  form  seems  applicable  where  actual  connection  has  taken  place  under  cir- 
cumstances involving  any  kgal  assault,  but  no  higher  offence.  See  Regina  v. 
Case,  1  Denison,  C.  C.  580 ;  4  Cox,  C.  C.  220 ;  1  Eng.  Law  &  Eq.  R.  544 ;  1 
Temple  &  Mew,  C.  C.  318. 

{d)  6  Cox,  C.  C  Appendix,  p.  xliii.  See  R.  v.  Rosinski,  1  Moody,  C.  C.  19; 
1  Lewin,  C.  C.  11. 

VOL.  I.  -  17  257 


(263)  OFFENCES    AGAINST   THE    PERSON. 

and  indecently,  and  against  the  will  of  the  said  C.  D.,  pull  and 
strip  the  clothes  of  the  said  C.  D.  from  and  off  the  body  of  the 
said  C.  D.,  and  did  then  and  there  otherwise  ill-treat  and  ill-use 
her;  against  the  peace,  &c.,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

(262)  Assault  with  intent  to  rape  —  attempting  to  abuse  a  female 
under  ten  years  of  age,  under  Ohio  Stat.  p.  48,  §  4.(e) 

That  A.  B.,  late  of  the  County  of  Lawrence  aforesaid,  on  the 
seventh  day  of  June,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  fifty,  in  and  upon  one  M.  N.,  then  and  there  being, 
unlawfully  did  make  an  assault,  with  an  intent,  her  the  said  M. 
N.  then  and  there  unlawfully  and  feloniously  to  carnally  know 
and  abuse,  he  the  said  A.  B.  then  and  there  being  a  male  person 
of  the  age  of  seventeen  years  and  upward,  and  the  said  M.  N. 
being  then  and  there  a  female  child  under  the  age  of  ten  years. 
{ Conclude  as  in  book  1,  chapter  3.) 

(263)  Assault  with  intent  to  steal. (z) 

That  A.  B.,  on,  &c.,  on  C.  D.,  &c.,  did  make  an  assault,  &c., 
with  intent  feloniously  to  steal,  take,  and  carry  away  the  money 
of  the  said  E.  from  his  person ;  and  that  the  said  A.  B.  did  then 
and  there  put  his  right  hand  into  the  pocket  of  the  coat  of  the 
said  E.,  on  the  body  of  the  said  E.,  and  other  harms  then  and 
there  did,  &c.     [Add  a  count  for  an  assault.) 

(e)  Warren's  C.  L.  58. 

(z)  Rogers  v.  Com.,  5  S.  &  R.  463.  It  is  not  necessary,  as  was  lield  here,  in 
assault  with  intent  to  steal,  that  the  goods  stolen  should  be  set  out.  "  The  in- 
tention of  the  person  was  to  pick  the  pocket  of  Earle  of  whatever  he  found  in 
it ;  and  although  there  might  be  nothing  in  the  pocket,  the  intention  to  steal  is 
the  same;  he  had  no  intention  to  steal  any  particular  article,  for  he  might  not 
know  what  was  in  it ;  it  would  be  impossible  to  lay  the  intention  in  any  other 
way  than  a  general  intention  to  pick  the  pocket  of  Earle.  The  crime  was  the 
assault,  the  intention  is  only  aggravation."     But  sec  Wh.  C.  L.  §  292. 

258 


BOOK   IV. 
OFFENCES  AGAINST    PROPERTY. 


CHAPTER  I. 

FORGERY,  COINING,  UTTERING,  ETC.(a) 

(264)  General  frame  of  indictment  at  common  law. 

(265)  Forging,  at  common  law,  a  certificate  of  an  officer  of  the  American 

army,  in  1 7  7  7,  to  the  effect  that  he  had  received  certain  stores, 
&c. 

(a)  See  on  this  subject  of  forgery  generally,  Wh.  C.  L.  as  follows  :  — 
A.  Statutory  FoiiGERY. 
United  States. 

Making,  altering,  forging,  &c.,  any  certificate,  indent,  or  other  pub- 
lic security  of  United  States,  §  1296. 

Stealing,  taking  away,  &c.,  any  writ  or  other  proceedings  in  any 

B|of  the  courts  of  United  States,  §  1297. 

Counterfeiting,  &c.,  any  note  in  imitation  of,  or  purporting  to  be  a 
treasury  note,  §  1298. 

Counterfeiting  with  intent  to  injure  or  defraud  the  United  States, 
§  1299. 

Falsely  making,  &c.,  any  power  of  attorney,  &c.,  for  the  purpose 
of  falsely  receiving  from  United  States  any  sum  of  money, 
§  1300. 

Possession  of  any  forged  deed,  power  of  attorney,  &c.,  for  the  pur- 
pose of  defrauding  the  United  States,  §  1301. 

Counterfeiting  or  assisting  to  counterfeit,  §  1302. 

Counterfeiting  any  paper,  &c.,  for  the  purpose  of  selling  or  convey- 
ing any  share  in  public  stock  or  debt  of  United  States,  §  1303. 

Making,  &c.,  any  false  sea  letter,  Mediterranean  passport,  &c., 
§  1304. 

Counterfeiting  any  instrument  purporting  to  be  an  official  copy  or 
certificate  of  recording,  registry,  or  enrolment  of  any  vessel, 
&c.,  §  1305. 

Issuing,  reissuing,  &c.,  as  money,  any  note,  bill,  &c.,  by  corpora- 
tion or  officer  whose  charter  has  expired,  §  1306. 

259 


OFFENCES    AGAINST    PROPERTY. 

(266)  Second  count.     Publisliing  the  same. 

(267)  Forgery.   Altering  a  certificate  of"  an  oflicer  of  the  American  army 

in  1778,  to  the  effect  that  he  had  received  for  the  use  of  the 
troops  at  Carlisle  certain  articles  of  clothing.  Oflence  laid  at 
common  law,  the  intent  being  to  defraud  the  United  States. 

(^Analysis  of  Forgery,  Coining,  Uttering,  ^'c,  in  Wh.  C.  L.) 

In  a  corporation  whose  charter  has  expired,  the  several  Circuit 
Courts  of  United  States  shall  have  jurisdiction  to  grant  in- 
junctions to  prevent  reissuing,  &c.,  of  any  notes,  §  1307. 

Forging,  &c.,  any  coin,  either  gold  or  silver,  in  resemblance  of  gold 
or  silver  coin  which  has  or  may  be  coined  at  mint,  &c.,  §  1308. 

Forging  or  counterfeiting  copper  coin  of  United  States,  §  1309. 

Debasing  any  coin,  either  gold  or  silver,  which  may  be  coined  at 
mint,  by  any  of  the  officers  employed  there,  §  1310. 

Debasing,  &c.,  for  gain's  sake,  any  gold  or  silver  coins  which  have 
been  or  shall  be  coined  at  mint  of  United  States,  §  1311. 

Nothing  in  the  act  shall  deprive  courts  of  individual   states  of 
jurisdiction,  §  1312. 
Massachusetts. 

Falsely  making  or  forging,  &c.,  any  public  record,  wherein  such 
return  or  certificate  may  be  received  as  legal  proof,  &c.,  §  1313. 

Punishment  for  the  above,  §  1314. 

Falsely  making  or  forging  any  note,  &c.,  issued  by  treasurer  of 
commonwealth,  §  1315. 

Forging  or  counterfeiting  any  bank  bill  or  promissory  note,  §  1316. 

Possession  at  same  time  of  ten  or  more  forged  notes,  §  1317. 

Uttering  or  passing  as  true,  any  forged  note  for  any  debt  of  com- 
monwealth, §  1318. 

Second  conviction  for  like  offence,  §  1319. 

Bringing  into  State  any  forged  note,  §  1320. 

Engraving,  making,  &c.,  any  plate,  block,  or  instrument  for  forg- 
ing or  making  any  counterfeit  note,  §  1321. 

In  prosecutions  for  forgery,  the  testimony  of  president  and  cashier 
may  be  dispensed  with,  &c.,  §  1322. 

In  prosecutions  for  forgery,  the  certificate  under  oath  of  treasurer, 
admitted  as  evidence,  §  1323. 

Connecting  together  different  parts  of  several  bank  notes,  §  1324. 

Fictitious  signature  purporting  to  be  signature  of  an  officer,  §  1325. 

Cases  Avliere  intent  to  defraud  is  required  to  constitute  offence  of 
forgery,  §  1326. 

Counterfeiting  gold  or  silver  coin,  or  possessing  at  same  time  ton 
or  more  pieces  of  false  money,  §  1327. 

Possession  of  any  number  of  pieces  less  than  ten,  §  1328. 

Second  conviction  of  offence  mentioned  in  preceding  section,  §  1 329. 

Casting  or  stamping  any  mould,  pattern,  &c.,  for  making  false 
coin,  either  gold  or  silver,  §  1330. 

260 


FORGERY,    COINING,    UTTERING,    ETC. 

(2G8)  Foiyory.     Altering  and  defacing  a  certain  registry  and  record,  &c., 

under  the  Pennsylvania  act  of  1 700. 
(269)  For  forging,  &c.,  a  bill  of  exchange,  an  acceptance  thereof,  and  an 

indorsement  thereon. 

(^Anali/sis  of  Forgery^  Coining,  Uttering,  §'c.,  in  Wh.  C.  L.) 

Rewards  allowed  for  informing  and  prosecuting  in  cases  hereafter 
mentioned,  §  1331. 

Counterfeiting  private  labels  or  stamps  of  mechanic  or  manufac- 
turer, §  1332. 

Vending  goods  or  merchandise  with  counterfeited  stamps  or  labels 
on,  §  1333. 

When  act  shall  take  effect,  §  1334. 
New  York. 

Counterfeiting,  &c.,  any  will  of  real  or  personal  property,  §  1335. 

Certificate  or  indorsement  of  acknowledgment,  §  1336. 

Certificate  or  proof  of  deed  or  Avill,  §  1337. 

Punishment  for  preceding,  §  1337. 

Forging  certificate  purporting  to  have  been  issued  under  authority 
of  State,  §  1338. 

Certificate  or  share  in  public  stock,  §  1339. 

Indorsement  purporting  to  transfer  right  of  interest  in  security, 
§  1340. 

Punishment  for  preceding,  §  1341. 

Forging  privy  seal  of  State,  or  of  any  public  office,  §  1342. 

Altering,  destroying,  &c.,  record  of  will,  §  1343. 

Record  of  judgment  in  court  of  record,  §  1344. 

Punishment,  §  1345. 

Forging  entry  in  book  of  records,  §  1346. 

Wilfully  certifying  that  any  instrument  was  acknowledged,  §  1347. 

Counterfeiting  gold  or  silver  coins,  §  1348. 

Counterfeiting  foreign  coin,  §  1349. 

Engraving  plate  in  form  of  promissory  note,  §  1350. 

Possession  of  plate  without  authority  of  bank,  §  1351. 

Possession  of  impression  taken  from  such  plate,  §  1352. 

Engraving  upon  jjlate  figures  or  words,  for  altering  evidence  ot 
debt,  §  1353. 

When  plate  deemed  in  similitude  of  genuine  instrument,  §  1354. 

Conviction  for  selling  forged  note,  §  1357. 

Offering  forged  note  for  sale,  §  1358. 

Receiving  forged  note,  §  1359. 

Punishment,  §  1360. 

Forging  any  process  issued  by  court,  §  1361. 

Forging  instrument  or  writing,  §  1362. 

Punishment  for  the  above,  §  1363. 

Making  false  entry  in  book  kept  in  office  of  comptroller,  §  1364. 

Making  false  entry  in  book  kept  by  moneyed  corporation,  §  1365. 

261 


OFFENCES  AGAINST  PROPERTY. 

(270)  Second  count,  for  uttering. 

(271)  Third  count,  for  forging  an  acceptance. 

(272)  Fourth  count,  same  stated  diiT'enintly. 

(273)  Fifth  count,  for  forging  an  indorsement,  &c 

(^Analysis  of  Forgery,  Coining,  Uttering,  Sec,  in  Wh.  C.  i.) 

Possession  of  forged  note,  knowing  it  to  be  so,  with  intention  to 

utter,  §  13G6. 
Possession  of  forged  instrument  with  intent  to  utter,  §  1367. 
Possession  of  counterfeit  gold  or  silver  coin,  §  1368. 
Uttering  and  publishing  as  true  any  forged  instrument  or  gold  or 

silver  coin,  §  1369. 
Receiving  forged  instrument  or  coin  for  consideration,  §  1370. 
Making  instrument  in  one's  own  name,  with  intent  to  create,  &c., 

any  obligation,  §  1371. 
Punishment  for  forgery  in  first  degree,  §  1372. 
Punishment  for  forgery  in  second  degree,  §  1373. 
Punishment  for  forgery  in  third  degree,  §  1374. 
Punishment  for  forgery  in  fourth  degree,  §  1375. 
Erasure  of  instrument  of  writing,  same  as  alteration  of  it,  §  1376. 
Connecting  different  parts  of  genuine  instruments,  §  1377. 
Instruments  within  meaning  of  the  act,  §  1378. 
Intent  to  defraud,  §  1379. 
Counterfeiting  any  evidence  of  debt,  §  1380. 

Amendment  of  act  to  prevent  frauds,  by  use  of  false  stamps,  §  1381. 
Forging  private  stamps,  &c.,  §  1382. 
Possession  of   any  die,  plate,  or  engraving,  or  printed  label,  or 

stamp,  for  purposes  of  fraud,  §  1383. 
Vending  goods  or  merchandise,  having  forged  stamps  on,  §  1384. 
When  act  to  take  effect,  §  1385. 
Pennsylvania. 

Forging  charter,  gifl,  &c.,  §  1386. 

Counterfeiting  hand  or  seal  of  another,  §  1387. 

Forging  entry  of  acknowledgment,  &c.,  §  1388. 

Forging  bill  or  note,  §  1389. 

Making   or  engraving,  or  possession  of  instrument,  for  forging 

notes  issued  by  bank,  §  1390. 
In  prosecutions,  not  necessary  to  produce  charter,  §  1391. 
Repealing  of  acts  of  assembly  of  eleventh,  twelfth,  and  thirteenth 

sections,  &c.,  §  1392. 
Conviction  after  passing  of  act,  for  forging  gold  and  silver  coin, 

§  1393. 
Repeal  of  punishment  before  described,  §  1394. 
Conviction  of  forging  or  tendering  in  payment  gold  or  silver  coin, 

§  1395. 
Wilfully  forging  upon  any  goods,  &c.,  the  private  stamps  of  me- 
chanic or  manufacturer,  §  1396. 

262 


FORGERY,    COINING,    UTTERING,    ETC. 

(274)  Sixth  count,  for  publishing  a  forged  indorsement,  &c. 

(275)  For  forgery  at  common  law  in  antedating  a  mortgage  deed  with 

interest,  to  take  place  of  a  prior  mortgage. 

(^Analijsis  of  Forgery,  Coining^  Uttering,  Sfc,  in  Wh.  C.  L.) 

Selling  goods,  &e.,  with  forged  stamps  on,  knowing  the  same  to  be 

so,  §  1397. 
Time  to  take  effect,  §  1398. 

Penalty  for  sending  felse  or  forged  messages,  §  1399. 
Punishment  for  counterfeiting  trade-marks,  §  1400. 
For  having  possession  of  dies,  plates,  &c.,  with  intent  so  to  use 

them,  §  1401. 
For  vending  goods  so  fraudulently  marked,  §  1402. 
Virginia. 

Forgery  by  free  person  of  public  record,  &c.,  §  1403. 
Keeping  or  concealing  instrument  for  forging  seal  of  courts,  §  1404. 
Forging  coin,  note,  or  bill,  or  fraudulently  making  the  same,  §  1405. 
Making,  &c.,  any  press  or  thing,  for  forging  any  writing,  or  pos- 
session of  instrument  for  that  purpose,  §  1406. 
Forging  writihg  to  prejudice  of  another's  right,  §  1407. 
Possession  of  forged  notes  or  coins,  either  more  or  less  than  ten, 

§  1408. 
Destroying  or  concealing  will  or  codicil,  §  1409. 
In  prosecution  for  forgery,  not  necessary  to  set  forth  a  fac-simile 

of  the  thing,  §  1410. 
Sufficient  in  an  indictment  to  allege  an  intent  to  defraud,  &c., 

without  naming  person  intended  to  be  injured,  §  1411. 
Ohio. 

Forging,  &c.,  record  of  public  nature,  charter,  letters  patent,  &c., 

§^41 2. 
Counterfeiting  coin,  altering  or  putting  off  such  coin,  or  making 

or  keeping  instruments  to  counterfeit  coin,  §  1413. 
Disposing  of  counterfeited  notes,  the  same  not  being  filled,  or 

signatures  forged  or  affixed,  or  same  being  filled  up,  &c.,  §  1414. 
Gilding  of  silver  coin,  §  1415. 
Engraving  or  keeping  plate  for  counterfeiting  or  altering,  &c., 

bank  bills,  §  1416. 
Attempting  to  pass  counterfeit  coin  or  bank  notes,  §  1417. 
B.  Forgery  at  Common  Law,  §  1418. 

I.   What  mail  be  the  subject  of  forgery^  §  1418. 
n.    Uttering,  Sfc,  §  1445. 

III.  Guilty  Knowledge  and  Intent,  §  1452. 

IV.  Handwriting,  §  1462. 
V.  Indictment,  §  1466. 

1  St.    How  fixr  the  different  stages  in  the  offence  can  be  coupled  in 

the  same  count,  §  1466. 
2d.    How  the  instrument  may  be  generally  designated,  §  1467. 

263 


OFFENCES  AGAINST  PROPERTY. 


(27G)  At  common  law.     Against  a  member  of  a  dissolved  firm  for  forg- 
ing the  name  of  the  firm  to  a  promissory  note. 

(277)  Forging  a  letter  of  attorney  at  common  la,w. 

(278)  Forgery  of  bill  of  exchange.     First  count,  forging  the  bill. 

(279)  Second  count.     Uttering  the  same. 

(280)  ^hird  count.     Forging  an  acceptance  on  the  same. 

(281)  Fourth  count.     Offering,  &c.,  a  forged  acceptance. 

(282)  Sixth  count.     Offering,  &c.,  forged  indorsement. 

(283)  Forging  and  publishing  a  receipt  for  payment  of  money. 

(284)  Second  count,  for  uttering. 

(285)  Forging  a  receipt,  under  the  North  Carolina  statute. 

(286)  Forging  ^eriyacias  at  common  law. 

(287)  Second  count.     Uttering  same. 

(288)  Forgery  of  a  bond  at  common  law. 

(289)  At  common  law,  by  separating  from  the  back  of  a  note  an  indorse- 

ment of  part  payment. 

(290)  Forgery  in  altering  a  peddler's  license,  at  common  law. 

(291)  Forgery  of  a  note  which  cannot  be  jaarticularly  described  in  con- 

sequence of  its  being  destroyed. 

(292)  Forgery  of  a  note  whose  tenor  cannot  be  set  out  on  account  of  its 

being  in  defendant's  possession. 

(293)  Forgery  of  bond  when  forged  instrument  is  in  defendant's  pos- 

session. 

(294)  Forgery  at  common  law,  in  passing  counterfeit  bank  notes. 

(295)  Forgery  of  the  note  of  a  foreign  bank  as  a  misdemeanor  at  com- 

mon law. 

(296)  Forging  a  bank  note,  and  uttering  the  same,  under  English  statute. 

(297)  Second  count.     Putting  away  same. 

(298)  Third  count.     Forging  promissory  note. 

(299)  Fourth  count.     Putting  away  same. 

(300)  Fifth  count.     Same  as  first,  with  intent  to  defraud  J.  S. 

(301)  Sixth  count.     Putting  away  same. 

(302)  Seventh  count.    Same  as  second,  with  intent  to  defraud  J.  S. 

(303)  Eighth  count.     Putting  away  same. 

(304)  Attempt  to  pass  counterfeit  bank  note,  under  Ohio  statute. 

(305)  Forging  a  certificate  granted  by  a  collector  of  the  customs. 

(306)  Causing  and  procuring  forgery,  &c. 

(307)  Altering  generally. 

(308)  Altering,  &c.,  averring  specij^lly  the  alterations. 

(^Analysis  of  Forgery,  Coining,  Uttering,  Sfc,  in  Wh.  C.  Z.) 
3d.    How  the  instrument  is  to  be  set  forth,  §  1468. 
4th.  How  far  the  incorporation  of  a  bank  must  be  set  out,  §  1488. 
5th.  Averment  of  knowledge  and  intent  to  defraud,  §  1492. 
6th.  Averment  of  damage  or  injury,  §  1498. 

7th.  Averment  of  person  on  whom  instrument  was  passed,  §  1499. 
VI.   Coining,  §  1500. 

264 


FORGERY,    COINING,    UTTERING,   ETC. 

(309)  Same  in  another  shape. 

(310)  Uttering  certificate  as  forged. 

(311)  Uttering  certificate  as  altered. 

(312)  Forging  a  treasury  note. 

(313)  Causing  and  procuring,  &c. 

(314)  Altering  same. 

(315)  Passing  note,  &c. 

(31 G)   Same  in  another  shape. 

(317)  Feloniously  altering  a  bank  note. 

(318)  Having  in  possession  forged  bank  notes  without  lawful  excuse, 

knowing  the  same  to  be  forged. 

(319)  Uttering  and  passing  a  counterfeit  bank  bill,  under  §4,  ch.  99,  of 

Revised  Statutes  of  Vermont. 

(320)  Uttering  forged  order,  under  Ohio  statute. 

(321)  Passing  same. 

(322)  Uttering  a  forged  note  purporting  to  be  issued  by  a  bank  in  an- 

other State,  under  the  Vermont  statute. 

(323)  Having  counterfeit  bank  note  in  possession,  under  Ohio  statute. 

(324)  Having  in  possession  counterfeit  plates,  under  Ohio  statute. 

(325)  Secretly  keeping  counterfeiting  instruments,  under  Oljio  statute. 
(32G)  Having  in  possession  counterfeit  bank  notes,  under  Ohio  statute. 

(327)  Having  in  possession  forged  note  of  United  States  Bank,  under  the 

Vermont  statute. 

(328)  Forgery,  &c.,  in  New  York.     Having  in  possession  a  forged  note 

of  a  corporation. 

(329)  Second  count.     Uttering  the  same. 

(330)  Forging  an  instrument  for  payment  of  money,  under  the  New  York 

statute. 

(331)  Second  count.     Uttei'ing  the  same. 

(332)  Having  in  possession  forged  notes,  &c.,  with  intent  to  defraud, 

under  the  New  York  statute, 

(333)  Forgery  of  a  note  of  a  bank  incorporated  in  Pennsylvania,  under 

the  Pennsylvania  statute. 

(334)  Second  count.     Passing  same. 

(335)  Forgery  of  the  note  of  a  bank  in  another  State,  under  the  Vir- 

ginia statute. 

(336)  For  making,  forging,  and  counterfeiting,  &c.,  American  coin,  under 

act  of  Congress. 
(33  7)  Second  count.     Same,  averring  time  of  coining. 

(338)  Tliird  count.     Passing,  &c. 

(339)  Fourth  count.     Same  in  another  shape. 

(340)  Fifth  count.     Same,  specifying  party  to  be  defrauded. 

(341)  Counterfeiting  half  dollars,  under  act  of  Congress. 

(342)  Passing  counterfeit  half  dollars,  with  intent  to  defraud  an  un- 

known person,  under  act  of  Congress. 

(343)  Second  count.     Same,  with  intent  to  defraud  R.  K. 

265 


(264)  OFFENCES  AGAINST  PROPERTY. 

(344)  Having  coining  tools  in  possession,  at  common  law. 
(34.'))  Making,  forging,  and  counterfeiting,  &c.,  foreign  coin,  quarter  dol- 
lar, under  act  of  Congress. 

(346)  Second  count.     Procuring  forgery. 

(347)  Passing,  uttering,  and  publishing  counterfeit   coin  of  a   foreign 

country,  under  act  of  Congress,  specifying  party  to  be  defrauded. 

(348)  Debasing  the  coin  of  the  United  States,  by  an  officer  employed  at 

the  mint,  under  act  of  Congress. 

(349)  Fraudulently  diminishing  the  coin  of  the   United  States,  under 

act  of  Congress. 

(350)  Uttering  a  counterfeit  half  guinea,  at  common  law. 

(351)  Passing  counterfeit  coin  similar  to  a  French  coin,  at  common  law. 

(352)  Counterfeiting  United  States  coin,  under  the  Vermont  statute. 

(353)  Having  in  possession  coining  instruments,  under  the  Rev.  Sts.  of 

Massachusetts,  ch,  127,  §  18. 

(354)  Having  in  possession  ten  counterfeit  pieces  of  coin,  with  intent  to 

pass  the  same,  under  Rev.  Sts.  of  Mass.  ch.  127,  §  15. 

(355)  Having  in  custody  less  than  ten  counterfeit  pieces  of  coin,  under 

Rev.  Sts.  of  Mass.  ch.  127,  §  16. 
(35G)   Uttering  and  publishing  as  true  a  forged  promissory  note.     Rev. 
Sts.  of  Mass.  ch.  127,  §  2. 

(357)  For  forging  a  promissory  note.     Rev.  Sts.  of  Mass.  ch.  127,  §  1. 

(358)  For  counterfeiting  a  bank  bill.     Rev.  Sts.  of  Mass.  ch.  127,  §  4. 

(359)  For  having  in  possession  at  the  same  time,  ten  or  more  counterfeit 

bank  bills,  with  intent  to  utter  and  pass  the  same  as  true.    Rev. 
Sts.  of  Mass.  ch.  127,  §  5. 

(360)  Passing  a  counterfeit  bank,  bill.     Rev.  Sts.  of  Mass.  ch.  127,  §  6. 

(361)  Having  in  possession  a  counterfeit  bank  bill,  with  intent  to  pass 

the  same.     Rev.  Sts.  of  Mass.  ch.  127,  §  8. 

(362)  Making  a  tool  to  be  used  in  counterfeiting  bank  notes.     Rev.  Sts. 

of  Mass.  ch.  127,  §  9. 

(363)  Having  in  possession  a  tool  to  be  used  in  counterfeiting  bank  notes, 

with  intent  to  use  the  same.     Rev.  Sts.  of  Mass.  ch.  127,  §  9. 

(364)  Counterfeiting  current  coin.     Rev.  Sts.  of  Mass.  ch.  127,  §  15. 

(365)  Uttering  and  passing  counterfeit  coin.    Rev.  Sts.  of  Mass.  ch.  127, 

§16. 

(366)  Coining,  &c.,  under  the  North  Carolina  statute. 

(264)    General  frame  of  indictment  at  common  law.(^a') 

That,  &c.,  on,  &c.,  falsely  and  fraudulently  did  forge  and 
counterfeit,(Z;)  (and  cause  and  procure  to  be  forged  and  counter- 
feited),(c)  a  certain  promissory  note  for  the  payment  of  money, 
purporting  to  be  made  by  one  A.  B.,  payable  on  demand  to  one 
C.  T).,{d)  the  tenor  of  which  said  forged  and  counterfeited  prom- 
issory note  is  as  follows,  that  is  to  say:  {here  set  out  the  instru- 
266 


FORGERY,    COINING,    UTTERING,    ETC.  (264) 

menl  in  ilie  manner  prescribed  in  note),{e)  with  intent  to  defraud 
the  said  A.  B.,(/)  (to  the  great  damage  of  the  said  A.  B.),(g") 
against,  tVe.     ( Conclude  as  in  book  1,  chapter  3.) 

(a)  This  form  is  introduced,  not  because  it  can  ever  be  of  use  as  a  precedent, 
the  common  law  remedy  having  been  absorbed  by  statutes,  but  in  order  to  place 
in  a  more  re<;ul:ir  shnpe  the  necessary  notes.  For  the  groundwork  of  the  latter, 
I  have  depended  on  Mr.  Starkie  (C.  P.  lOG),  adding  at  large  the  American  and 
the  later  English  authorities. 

(i)  "It  is  sufficient  to  allege  that  the  defendant  forged  and  counterfeited, 
though  it  is  usual  to  aver  that  he  did  fahel/j  forge  and  counterfeit,  for  the  adverb 
is  sufficiently  implied  in  the  former  words.  1  Str  12,  19;  East,  P.  C.  985; 
R.  V.  Mariot,  2  Lev.  221  ;  R.  v.  Dawson,  1  Str.  19.  In  Elsworth's  case  (coram 
Willes,  York  Lent  Assizes,  1780,  East,  P.  C.  98G),  the  indictment  stated  that  the 
said  T.  E.,  the  said  bill  of  exchange  did  feloniously  al'er  and  cause  to  be  altered, 
by  falsely  making,  forging,  and  adding  the  letter  ?/  to  the  word  eight  in  the  bill 
mentioned,  whereby,  &c.  The  second  count  alleged,  that  certain  persons  un- 
known altered  the  bill,  and  charged  the  defendant  with  uttering  and  publishing 
the  bill  as  true,  knowing  it  to  be  forged.  The  words  of  the  statute  on  which  the 
indictment  was  founded  (2  Geo.  II.  c.  25,  s.  1)  are,  'If  any  person  shall  falsel?/ 
make,  forge,  or  counterfeit.'  It  was  objected,  in  arrest  of  judgment,  that  the  in- 
dictment merely  charged  that  certain  persons  unknown  did  alter,  hy  fahehj  malc- 
infi,  &c.,  and  did  not  charge,  in  the  words  of  the  act,  that  they  falsely  made, 
forrjed,  &e.,  and  that  the  word  alter  was  not  used  in  the  statute.  But  the  judges 
held  that  the  indictment  was  good,  and  that  there  was  no  difference  in  substance 
or  in  the  nature  of  the  charge,  whether  the  indictment  were  for  feloniously  alter- 
ing, by  falsely  making  and  forging,  or  for  feloniously  making  and  forging,  by 
falsely  altering.  In  the  case  of  King  v.  Bigg  (3  P.  Wms.  419),  the  indictment 
alleged  that  the  defendant  feloniously  erased  an  indorsement  from  a  bank  note ; 
the  jury  found  that  the  defendant  had  expunged  the  inscription,  by  means  of 
some  unknown  liquor,  and  the  judges  held  that  the  prisoner  was  guilty.  The 
majorilji  were  of  this  opinion,  but  the  case  involved  many  other  points,  and  the 
prisoner  was  afterwards  pardoned  on  condition  of  transporting  himself.  Str. 
19."     Stark   C.  P.  108. 

"In  consideration  of  law,  every  alteration  of  an  instrimient  amounts  to  a  for- 
gery of  the  whole.  In  Dawson's  case,  it  was  holden  by  ten  judges,  that  the  alter- 
ation of  the  figure  2  in  a  bank  note  to  5,  Avas  a  forging  of  a  bank  note.  East,  P. 
C.  978."     Stark.  C.  P.  108.     See  Wh.  C.  L.  §§  1418-1445. 

The  indictment  in  Teague's  case  (East,  P.  C.  979),  for  making,  forging,  and 
counterfeiting  a  bill  of  exchange,  under  the  stat.  7  George  II.  c.  22,  was  holden 
to  be  supported  by  proof,  that  the  defendant  had  altered  a  bill  of  exchange  for 
the  payment  of  £lO  into  £50,  both  in  words  and  figures.  It  was  objected,  that 
the  defendant  ought  to  have  been  charged  with  altering  the  genuine  bill,  since 
the  Stat  7  Geo.  II.  c.  22,  makes  it  a  distinct  offence  to  alter ;  but  the  judges,  on 
the  authority  of  Dawson's  case,  held  that  the  conviction  was  proper,  and  that 
every  alteration  of  a  true  instrument,  for  such  a  purpose,  made  it,  when  altered, 

267 


(264)  OFFENCES  AGAINST  PROPERTY. 

a  forgery  for  the  whole  instrument.  See  also  State  v.  Ilitchens,  2  TIarringt.  527 ; 
Com.  V.  Ladd,  15  Mass.  526  ;  State  v.  Waters,  3  Brev.  507  ;  Com.  v.  Ilayward, 
10  Mass.  34. 

But  in  cases  Avhere  a  genuine  note  or  instrument  has  been  altered,  it  is  usual 
to  allege  the  alieration  in  one  count  of  the  indictment.  See  East,  P.  C.  980;  R. 
V.  Harrison  ;  R.  v.  Elsworth,  there  referred  to. 

It  is  not  sufficient  to  aver,  that  the  defendant  forged  or  caused  to  be  forged, 
for  it  is  not  certain  and  positive.  1  Salk.  342;  5  Mod.  137  ;  Holt,  R.  345.  Aa 
indictment  which  charges  a  prisoner  with  the  offences  of  falsely  making,  forging, 
and  counterfeiting,  of  causing  and  procuring  to  be  falsely  made,  forged,  and 
counterfeited,  and  of  willingly  acting  and  assisting  in  the  said  false  making, 
forging,  and  counterfeiting,  is  a  good  indictment,  though  all  of  these  charges  are 
contained  in  a  single  count;  and  as  the  words  of  the  statute  have  been  pursued, 
there  being  a  general  verdict  of  guilty,  judgment  ought  not  to  be  arrested  on  the 
ground  that  the  offences  are  distinct.  Rasnick  v.  Com.,  2  Va.  Cases,  356 ;  State 
V.  Houseall,  1  Rice's  Dig.  346.  See  Wh.  C.  L.  §§  390,  1466.  But  where  two  dis- 
tinct offences,  requij-ing  different  punishments,  are  alleged  in  the  same  count,  as 
where  the  forging  of  a  mortgage,  and  of  a  receipt  indorsed  thereo'n,  are  both 
charged  in  the  same  count,  and  the  defendant  be  convicted,  the  judgment  will 
be  arrested.     People  v.  "Wright,  9  Wend.  193. 

(c)  The  allegation  in  brackets,  though  rarely  necessary,  is  not  duplicity  when 
introduced.  See  last  paragraph,  and  see  Wh.  C.  L.  §§  390,  1466.  It  is  not  neces- 
sary, as  it  seems,  to  go  on  to  allege  by  what  means  the  "  causing  and  procuring  " 
was  brought  about.     Brown  v.  Com.,  2  Leigh,  769. 

(r/)  It  is  essential  that  the  purport  of  the  instrument  should  be  properly  de- 
scribed, so  as  to  bring  it  within  the  statute.  The  authorities  on  this  point  are 
collected  in  the  next  note. 

(e)  In  considering  the  particular  instrument  set  forth  will  be  considered,  — 

1.  In  what  manner  it  should  he  set  forth. 

2.  Hoic  it  should  he  shown  to  be  the  instrument  (supposing  it  to  be  genuine),  ike 
forging  of  which  is  prohibited, 

1.  The  instrument  set  forth  may  be  prefaced  by  the  words,  '■'■to  the  tenor  fol- 
lowing," or  "  in  these  words,"  or  "  as  follows,"  or  "  in  the  words  and  figures  follow- 
ing : "  for  though  the  setting  out  an  instrument  by  the  tenor  (R.  v.  Drake,  3  Salk. 
224;  Holt,  R.  347,  349,  350,  425;  11  Mod.  95),  which  imports  a  true  copy,  is 
the  most  technical  mode,  yet  it  has  been  holden  that  the  words, "  as  fdloivs," 
are  equivalent  to  the  words,  "  according  to  the  tenor  following,"  or  "  in  the 
words  and  figures  following,"  and  that  if,  under  such  an  allegation,  the  prosecutor 
fail  in  proving  the  instrument  verbatim  as  laid,  the  variance  will  be  fatal.  R.  «'. 
Powel,  1  Leach,  110;  2  Bl.  Rep.  787;  East,  P.  C.  97;  Wh.  C.  L.  §  307.  And 
unless  the  indictment  profess,  by  these  or  similar  expressions,  to  set  out  a  copy 
of  the  instrument  in  words  and  figures,  it  will  be  vicious.  lb.  ;  Lyon's  case, 
1  Leach,  699;  Dougl.  193,  194;  2  Leach,  660,  661;  6  East,  418  to  426;  11  Mod. 
9,6,  97;  Holt,  34  7,  348,  349,  350,425;  1  Chit.  C.  L.  234;  3  Salk.  225;  Com. 
u.  Stevens,  1  Mass.  203;  State  v.  Street,  Taylor,  158;  People  v.  Franklin, 
3  Johns.  Cas.  299.  See  State  v.  Bradley,  1  Hay.  403 ;  Com.  v.  Searle,  2  Binn. 
268 


FORGERY,    COINING,    UTTERING,    ETC.  (264) 

332;  State  v.  CofTey,  N.  C.  T.  R.  272;  State  v.  Carr,  5  N.  Ilamp.  36  7;  Com.  v. 
Bailey,  1  Mass.  62;  U.  S.  v.  Britton,  2  Mason,  462;  Com.  v.  M'Atee,  8  Dana's 
Ky.  R.  29;  Fost.  194;  R.  v.  Holland,  5  T.  R.  623;  1  Stark.  C.  P.  73;  Cowp. 
672;  5  T.  R.  623;  3  Inst.  41  ;  State  v.  Gustin,  2  South.  R.  749;  State  v.  Ste- 
phens, Wright's  Ohio,  R.  73;  State  v.  Farrand,  3  Halst.  333;  R.  v.  Mason,  2 
East,  180;  Com.  v.  Bailey,  1  Mass.  62;  Com.  v.  Stow,  1  Mass.  54;  Com.  v.  Gil- 
lespie, 7  S.  &  R.  469 ;  2  East,  P.  C.  976  ;  R.  v.  Hart,  1  Leach,  145 ;  R.  v.  Paul, 
1  Leach,  77;  Cowp.  672;  Com.  v.  Sweney,  10  S.  &  R.  173;  Com.  v.  Parmenter, 
5  Pick.  279  ;  Dougl.  193,  194;  State  v.  Waters,  Const.  R.  169;  Com.  v.  Kearns, 
1  Va.  Cases,  109;  2  Bla.  Rep.  787;  State  v.  Wimberly,  3  M'Cord,  190;  Dougl. 
300;  State  v.  Carter,  Conf.  N.  C.  R.  210 ;  State  v.  Molier,  1  Dev.  263;  2  Leach, 
624  ;  Dougl.  97  ;  State  v.  Twitty,  2  Hawks,  487  ;  1  Marsh.  522  ;  State  v.  Handy, 
20  Maine,  81 ;  People  v.  Warner,  5  Wend.  271 ;  Com.  v.  Riley,  Thacher's  C.  C. 
67;  Hoffman  v.  Com.,  6  Rand.  685;  U.  S.  v.  Hinman,  1  Bald.  292;  State  v. 
Showley,  5  Hay.  256;  State  v.  Calvin,  &c.,  Charlt.  151;  Com.  v.  Buckingham, 
Thacher's  C.  C.  29;  State  v.  Twitty,  2  Hawks,  248;  Ohio  v.  M'Millen,  5 
Ohio,  269.     See  fully  on  this  point,  Wh.  C.  L.  §§  311,  1468. 

An  accurate  copy,  as  in  Hunter's  case  (Leach,  721 ;  Mason's  case,  Leach,  548), 
of  the  instrument,  in  worrh  and  Jigu7'es  (R.  v.  Powel,  1  Leach,  90;  Hart's  case, 
Leach,  172),  must  then  be  set  forth,  to  enable  the  court  to  see  that  it  is  one  of 
those  instruments,  the  false  making  of  which  the  law  considers  to  be  a  forgery. 
Lvon's  case,  1  Leach,  696;  Mason's  case.  East,  P.  C.  975;  Gilchrist's  case. 
Leach,  753;  State  v.  Bryant,  17  N.  H.  323;  Com.  v.  Clancy,  7  Allen  (Mass), 
537. 

In  indictments  for  forging  particular  stamps  which  the  legislature  has  di- 
rected to  be  used,  it  appears  to  be  unnecessary  to  give  any  particular  descrip- 
tion of  the  stamp.  See  Palmer's  case.  East,  P.  C.  893  ;  Collicot's  case,  4  Taunt. 
300. 

Sewing  to  the  parchment  on  which  the  indictment  is  written  impressions  of 
forged  notes  taken  from  engraved  plates,  is  not  a  regular  mode  of  setting  out 
the  notes  in  the  indictment.  R.  v.  Warshaner,  1  Mood.  C.  Ci  656  ;  R.  v.  Harris, 
11.  V.  Moses,  R.  V.  Balls,  7  C.  &  P.  429  ;  Wh.  C.  L.  §§  308,  1475.  And  so  of 
attaching  one  of  the  original  printed  papers  to  the  indictment,  instead  of  set- 
ting out  the  paper.     Cora.  v.  Tarbox,  1  Cush.  66. 

In  setting  forth  the  lenor  of  an  instrument,  a  mere  variance  of  a  letter  will 
not  vitiate  the  indictment,  provided  the  sense  be  not  altered  by  changing  the 
word  misspelt  into  another  of  a  different  meaning.  Thus  (R.  v.  Hart,  Leach, 
172),  in  an  indictment  for  forging  a  bill  of  exchange,  the  tenor  was  "value  re- 
ceived;" the  bill  proved  in  evidence  was  for  value  reicevd,  and  the  judges  (De 
Grey,  C.  J.,  and  Willes,  J.,  Avere  absent),  upon  the  reserved  question,  were  of 
opinion,  that  the  variance  was  not  fatal,  since  it  did  not  change  the  icord  into 
another.  East,  P.  C.  978.  So  in  an  indictment  for  perjury  (R.  v.  Beech,  Leach, 
137;  2  Hawk.  c.  46,  s.  190),  it  was  assigned  for  perjury,  that  the  defendant  had 
sworn  that  he  underload  and  believed,  in  the  affidavit  he  swore,  that  he  under- 
stood and  believed.  Upon  a  motion  for  a  new  trial,  Ld.  Mansfield,  C.  J.,  said  : 
"  We  have  looked  into  all  the  cases  on  this  subject,  some  of  which  go  to  a  great 

269 


(264)  OFFENCES    AGAINST    PROPERTY. 


length  of  nicety  indeed,  particularly  the  case  in  llutton,  whore  the  word  indicari 
was  written  for  indictari ;  but  that  case  is  shaken  by  the  doctrine  laid  down  in 
Hawkins.  The  true  distinction  seems  to  be  taken  in  the  Queen  v.  Drake  (Salk. 
660),  that  where  the  omission  or  addition  of  a  letter  does  not  change  the  word,  so 
as  to  make  it  another  word,  the  variance  is  not  raateria|.  R.  v.  Beech,  Leach, 
158.  See  Salk.  660;  R.  v.  Bear,  Carth.  408;  Holt,  11.  350;  Cowp.  229;  Dougl. 
193.  In  Oldfield's  case  (cor.  Bayley,  J.,  Durham  Sum.  Ass.  1811),  and  afterwards 
before  the  judges,  where  in  setting  out  the  bill  it  was  alleged  to  be  directed  to 
Messrs.  M.  P.  &  Co.,  and  the  bill  on  being  j^roduced  was  directed  to  Messs.  M. 
P.  &  Co.,  the  r  in  Messrs.  being  omitted,  the  variance  was  held  to  be  immaterial. 
See  Russell,  1482;  Stark.  C.  P.  110.  In  the  same  way,  "Keen"  for  ''Keene," 
and  "promise"  for  "promised,"  have  been  held  immaterial.  Com.  v.  Riley, 
Thacher's  C.  C.  67;  Com.  v.  Parmenter,  5  Pick,  279.  But  the  omission  of 
"  evening  "  after  the  word  "  Tuesday,"  was  held  fatal.  ■  Com.  v.  Buckingham, 
Thacher's  C.  C.  29.  The  most  severe  application  of  the  rule  is  in  Com.  v, 
Gillespie,  7  S.  &  R.  469,  where  "  Burrall "  was  held  a  fatal  departure  from 
"Burrill."     Wh.  C.  L.  §§  606-610. 

An  indictment  for  forgery,  alleging  the  word  bircTi  to  have  been  altered  to 
hatch,  by  erasing  the  letters  ire  and  inserting  the  letters  ate,  is  supported  by  evi- 
dence of  the  erasure  of  ir  and  substitution  of  at.  State  v.  Rowley,  Brayt.  76. 
Where  the  indictment  charged  that  Joseph  G.  Fogg,  the  defendant,  did  feloni- 
ously and  fraudulently  forge  and  make  a  certain  writing  obligatory,  as  follows, 
that  is  to  say,  &c.,  but  the  instrument  set  out  purported  on  its  face  to  be  exe- 
cuted by  James  (i.  Fogg  and  Joseph  G.  Fogg,  the  defendant,  it  was  held  that 
there  was  no  repugnance  in  the  charge  in  the  indictment.  Fogg  v.  State,  9 
Yerg.  392.  In  Elizabeth  Dunn's  case,  the  indictment  charged  the  defendant 
with  forging  a  promissory  note,  the  tenor  of  which  is  as  follows,  and  then  set  out 
the  note,  including  the  attestation,  "  Witness,  John  Whettal,"  and  also  the  words 
"  Mary  Wallace,  her  mark."  The  fact  was,  that  the  attestation  and  the  subse- 
quent words  had  been  added  after  the  defendant  had  affixed  her  mark,  and  the 
recorder  doubted  whether  the  indictment  had  been  proved,  since  the  note  forged 
by  her  differed  from  the  tenor  set  out.  But  Mr.  Baron  Perot  and  Mr.  J.  Aston 
were  of  opinion,  that  the  indictment  in  this  respect  was  well  proved.  Leach, 
68;  East,  P.  C  961.  Where  an  indictment  alleged  that  a  forged  certificate 
was  signed  by  Bowling  Starke,  but  the  instrument  was  signed  B.  Starke,  and 
the  signer's  true  name  was  Boiling  Starke,  the  variance  was  held  fotal.  State 
V.  Waters,  1  Const.  Ct.  R  669;  Com.  v.  Kearns,  1  Va.  Cases,  109.  Where  an 
indictment  charged  that  an  alleged  counterfeit  bill  was  a  note,  purporting  to  be 
a  note  of  the  P.  &  M.  Bank  of  South  Carolina,  which  was  the  name  given  by  the 
charter,  but  the  tenor  of  the  note  as  set  forth  was,  "  the  President,  Directors,  & 
Co.,"  as  in  the  note,  it  was  held  that  the  statement  in  the  note  was  a  mere  desig- 
nation of  the  persons  composing  the  corporation,  who  made  themselves  liable 
for  the  payment  of  the  note,  and  that  there  was  no  variance  or  repugnancy  be- 
tween the  tenor  and  the  purjiort.  State  v.  Calvin,  &e.,  Charlt.  151.  But  an 
indictment  for  forging  a  writing,  describing  the  same  as  purporting  to  be  signed 
by  the  president  and  directors  of  a  bank,  and  setting  out  the  forged  writing  ver- 

270 


an    \ 


FORGERY,    COINING,    UTTERING,    ETC.  (264) 

batim,  but  upon  the  face  of  it  not  appearing  to  have  been  by  order  of  the  presi- 
dent and  directors,  is  bad.  State  v.  Showley,  5  Hay.  256.  If  the  instrument 
forged  be  in  a  foreign  language,  it  must  be  set  out  in  that  language,  and  a  com- 
plete and  accurate  translation  must  be  set  out.  See  R.  v.  Szudurskie,  1  Mood. 
C.  C.  410;  R.  V.  Harris,  7  C.  &  P.  416,  429;  R.  v.  Warshaner,  lb.  466. 

{Lost  papers.)  "  Where  the  instrument  on  which  the  indictment  is  founded  -was 
destroyed,  lost,  or  in  the  possession  of  the  defendant  before  bill  found,"  as  was  re- 
marked in  another  place  (Wh.  C.  L.  §§  311,  657),  "  it  will  be  sufficient  to  set  forth 
the  substance  and  effect  of  the  instrument,  averring,  at  the  same  time,  as  an  excuse 
for  its  non-production,  its  loss,  destruction,  or  detention,  as  the  case  may  be.  In 
such  case  it  will  be  admissible  on  trial  to  give  parol  evidence  of  the  instrument, 
and  such  evidence,  if  there  be  no  substantial  variance,  will  sustain  the  indict- 
ment. R.  V.  Ha  worth,  4  C.  &  P.  254;  R.  v.  Hunter,  lb.  128;  People  v.  Kings- 
ley,  6  Cow.  522;  8  Mass.  110;  People  v.  Badgely,  16  Wend.  53;  State  v.  Par- 
ker, 1  Chapman,  298 ;  State  v.  Potts,  4  Halst.  293;  Pendleton,  v.  Com.,  4  Leigh, 
694;  U.  S.  V.  Britton,  2  Mason,  468;  Bucher  v.  Jarrett,  5  Bos.  &  Pull.  145; 
Howe  V.  Hall,  14  East,  275.  In  England  the  practice  is  to  give  notice  to  the 
prisoner  to  produce  the  writing  at  the  assize,  so  that  it  may  be  brought  before 
the  grand  jury.  Such  notice,  however,  it  would  appear  from  the  cases  in  this 
country,  is  not  considered  necessary  wherever  the  indictment  in  itself  is  a  notice. 
Pendleton  v.  Cora.,  4  Leigh,  694 ;  People  v.  Kingsley,  2  Cow.  522 ;  State  v. 
Potts,  4  Halst.  293;  People  v.  Badgeley,  16  Wend.  522;  Wh.  C.  L.  §  311. 
Thus,  on  the  trial  of  an  indictment  for  stealing  a  bank  bill,  where  the  bill  is  in 
the  defendant's  possession,  it  is  not  necessary  to  account  for  the  non-production, 
the  fact  of  the  indictment  being  found  sufficient  notice  to  the  defendant  to  jjro- 
duce.  Com.  v.  Messinger,  1  Binn.  274;  People  v.  Holbrook,  13  Johns.  R.  90. 
So  though  an  indictment  lor  passing  counterfeit  money  purport  to  set  forth  the 
counterfeit  note  according  to  its  tenor,  and  contain  no  averment  of  its  loss  or 
destruction,  the  production  of  the  note  may  be  dispensed  with,  ujson  proof  that 
the  same  has  been  mutilated  and  destroyed  by  the  defendant,  and  other  evidence 
of  its  contents  may  be  admitted.  State  v.  Potts,  4  Halst.  26."  So  it  was  said 
in  another  case,  whei'e  the  note  was  described  as  made  on  the  day  of  May, 

and  the  proof  was  that  the  forged  note  was  dated  on  a  particular  day,  a  convic- 
tion would  be  sustained  notwithstanding  the  variance,  when  a  satisfactory  rea- 
son for  the  omission  of  a  more  particular  description  is  given  in  the  indictment. 
People  I'.  Badgely,  16  Wend.  53.  It  has  been  ruled,  however,  that  upon  a  rule 
to  show  cause,  the  court  will  not  order  an  attorney  of  the  court  to  deliver  to  the 
state  attorney  for  the  inspection  of  the  grand  jury,  promissory  notes  suggested  to 
have  been  forged,  which  had  been  delivered  to  the  attorney  in  the  common 
course  of  business  by  his  client  suspected  of  committing  the  forgery.  State  v. 
Squires,  1  Tyler's  Vt.  R.  p.  147, 

Where  a  forged  paper  is  passed  by  a  prisoner,  bearing  date  in  1828,  and  im- 
mediately after,  with  the  knowledge  of  the  holder,  the  prisoner  alters  the  date  to 
1827,  and  the  indictment  set  forth  its  tenor,  and  describes  it  as  dated  in  1827,  it 
■was  held  that  the  paper  was  proper  evidence  to  go  to  the  jury  in  support  of  the 

271 


(264)  OFFENCES  AGAINST  PROPERTY. 

indictment,  notwithstanding  the  proof  that  it  bore  date  in  1828,  when  passed. 
Hoffman  v.  Com.,  6  Rand.  685. 

(  Whether  it  be  necexxary  to  set  out  the  ivhole  of  the  forged  writing.^  "  In  the 
short  report  of  Smith's  case,  in  the  first  volume  of  Salkeld  (Salk.  342,  Pasch. 
2  Ann),  it  is  stated,  that  the  defendant  was  indicted  for  forging  a  deed  of  as- 
signment of  a  lease,  signed  with  the  mark  of  one  Goddard,  cujus  tenor  sequitur, 
but  set  not  down  the  mark  as  in  the  assignment ;  it  was  objected  that  without 
the  mark  it  could  be  no  forgery,  and  the  objection  Avas  overruled.  But  this  is  a 
very  loose  report  of  the  case,  which  appears  to  be  the  same  with  that  reported  in 
the  third  volume  of  Salkeld,  and  by  Ld.  Raymond,  under  the  title  of  the  Queen 
V.  Goddard,  in  3  Salk.  171,  Trin.  2  Ann;  K.  v.  Goddard,  et  al.,  Ld.  Raym.  920; 
R.  V.  Goddard  and  Carlton  ;  according  to  which  the  defendant  was  indicted  for 
foro-ino-  an  assignment  of  a  lease,  and  the  tenor  was  set  out;  at  the  bottom  of  the 
assio-nment  was  the  mark  of  the  assignor,  but  no  mark  appeared  upon  the  postea  ; 
and  the  whole  court  held,  that  since,  by  the  statute  of  frauds,  an  assignment 
must  be  signed,  the  want  of  the  mark  of  the  defendant  upon  the  postea  was  a 
fatal  defect;  but  as  another  indictment  had  been  found  against  the  defendant, 
the  court  gave  no  judgment,  but  ruled  that  the  defendant  should  plead  to  the 
sio-ning.  But  Ld.  Holt  held,  that  if  the  indictment  had  been  for  forging  a  deed 
of  assignment  (Mr.  East,  in  his  Pleas  of  the  Crown,  776,  cites  Salk.  342,  and 
questions  this  point),  and  the  deed  had  been  set  forth  without  any  mark  or  sig- 
nature, that  might  have  been  good,  because  signing  is  not  necessary  to  a  deed ; 
for  in  former  times  they  were  sealed  only,  and  not  signed.  Salk.  342,  Pasch.  2 
Ann." 

Where  the  instrument  forged  was  a  bond,  purporting  to  be  attested  by  one  A. 
B.,  and  the  indictment  charged  that  the  defendant  "  wittingly  and  willingly  did 
forge  and  cause  to  be  forged  a  certain  paper  writing,  purporting  to  be  a  bond, 
and  to  be  signed  by  one  C.  D.,  with  the  name  of  him  the  said  C.  D.,  and  to  be 
sealed  with  the  seal  of  the  said  C.  D.  ; "  and  the  tenor  of  the  bond,  with  a  sub- 
scribing witness  was  set  forth,  but  did  not  charge  that  the  bond  purported  to  be 
attested  by  one  A.  B.,  a  motion  to  arrest  the  judgment  on  this  account  was  over- 
ruled, on  the  ground  that  nothing  need  be  averred  in  the  indictment  which  is 
not  necessary  to  constitute  the  offence  charged.  It  is  not  necessary,  it  is  said, 
that  there  should  be  a  subscribing  witness  to  a  bond,  and  if  there  be  one,  it  is 
not  his  signature,  but  the  signing,  sealing,  and  delivery  by  the  obligoi-,  that  con- 
stitute the  instrument  a  deed.     State  v.  Ballard,  2  INIurph.  186. 

It  seems,  in  all  cases,  to  be  sufficient  to  set  out  that  part  of  a  written  docu- 
ment which  comprehends  the  particular  instrument  forged,  though  connected 
with  other  matter.  Thus,  in  an  indictment  for  publishing  a  forged  receipt  for 
money,  the  receipt  alone  was  set  forth,  as  follows :  "  18th  March,  1733,  received 
the  contents  above,  by  me,  Stephen  AVithers ; "  and,  upon  its  appearing  in  evi- 
dence that  the  above  was  forged  at  the  bottom  of  a  certain  account,  it  was  ob- 
jected that  the  account  itself  should  have  been  set  forth,  for  otherwise,  it  would 
not  appear  thn.t  it  was  a  receipt  for  money.  But  all  the  judges  held  the  indict- 
ment to  be  sufficient  ;  for  it  was  laid  to  be  a  forged  receipt  for  money,  under  the 

272 


FORGERY,    COINING,    UTTERING,    ETC.  (264) 

hand  of  S.  W  ,  for  £l  4s.,  and  the  bill  itself  was  only  evidence  to  make  out  that 
charge.     R.  v.  Testick,  1  East,  181  ;  East,  P.  C  925. 

The  number  of  a  bank  bill,  its  vignettes,  mottoes,  and  devices,  and  the  words 
and  figures  in  the  margin,  need  not  be  set  out  in  the  indictment.  It  is  enough 
to  set  forth  what  constitutes  the  contract  of  the  bill ;  but  that  must  be  done 
truly  and  precisely.  Com.  v.  Stow,  1  Mass.  54  ;  Com.  u.  Bailey,  1  Mass.  62 ; 
State  V.  Carr,  5  N.  Hamp.  371 ;  State  v.  Franklin,  3  Johns.  Cas.  209  ;  Com.  w. 
Searle,  2  Binn.  332;  Com.  v.  Stevens,  1  Mass.  203;  Griffin  v.  State,  14  Ohio 
(N.  S.)  55 ;  State  v,  Wheeler,  35  Vt.  (6  Shaw),  261. 

On  the  trial  of  an  indictment  for  passing  a  counterfeit  bank  note,  the  prisoner 
moved  to  exclude  the  note  produced  from  going  in  evidence  to  the  jury,  on  the 
ground  that  the  name  of  one  of  the  firm  of  engravers,  set  out  in  the  description  of 
the  note  in  the  iudictraent,  did  not  appear  on  the  note  produced ;  the  attorney 
for  the  commonwealth  proved  that  when  he  drew  the  indictment,  he  had  been 
able  to  make  out  the  name  on  the  note  from  his  knowledge  that  one  of  the  firm 
of  engravers  bore  that  name,  though  he  could  not  say  he  would  have  been  able 
to  do  so  without  the  knowledge  of  the  fact,  but  that  the  word  had  since  become 
indistinct,  he  supposed,  by  handling  the  note ;  the  court  below  thereupon  over- 
ruled the  motion  to  exclude,  and  permitted  evidence  to  be  given  of  the  note  thus 
produced.  It  was  held  by  the  General  Court  that  it  was  right  for  the  court 
below  to  do  so.     Buckland  v.  Com.,  8  Leigh,  732. 

2.  Hoio  the  forf/fid  instrument  should  he  shown  to  be  of  the  kind  prohihiled. 

It  must  invariably  be  shown  on  the  face  of  the  indictment,  by  proper  aver- 
ments, that  the  instrument  forged  is  of  the  particular  kind  prohibited,  in  re- 
spect to  which  an  indictment  lies.  State  v.  Jones,  1  M'M.  236  ;  Wh.  C.  L.  §§  307, 
341-9,  1467. 

For  definitions  see  as  follows  :  — 

"Purporting,"  Wh.  C.  L.  §  342. 

"  Receipt,"  Wh.  C.  L.  §  343. 

"  Bill  of  Exchange,"  Wh.  C.  L.  §  344. 

"  Promi«sory  Note,"  Wh.  C.  L.  §  345. 

"  Bank  Note,"  Wh.  C.  L.  §  346. 

"  A  forged  instrument  cannot  in  strictness  be  called  by  the  name  of  the  real 
instrument  which  it  assumes  to  be  ;  an  instrument  purporting  to  be  a  bond,  or 
writing  obligatory,  is  not  such,  for  no  one  is  bound  by  it  ;  and  a  forged  writing, 
purporting  to  be  a  will,  ought  not  in  strictness  to  be  called  a  will,  for  it  is  not  so 
in  any  sense,  and  can  have  no  legal  operation  whatever."     Stark.  C.  P.  113. 

"  But  many  statutes  describing  the  offence  of  forgery  use  the  words,  *  and  if 
any  person  shall  forge  any  uill,  or  bond  (22  Geo.  II.  c.  25),  or  writing  obligatory, 
ifc. ; '  and  therefore  it  may  be  averred  in  the  indictment,  that  the  defendant 
forged  the  will  (K.  v.  Birch  and  Martin,  Leach,  92 ;  East,  P.  C.  980),  bond,  or 
writing  obligatory.  Dunnett's  case,  East,  P.  C.  985.  But  it  is  in  all  cases 
proper,  and  seemingly  more  correct,  to  aver,  that  the  defendant  forged  and 
counterfeited  a  certain  paper  writing  purporting  to  be  the  last  will  (or  other  in- 
strument  whose  forgery  is  penal).  In  the  case  of  the  King  v.  Birch  and  Martin, 
it  was  EG  averred,  and  the  judges  held,  that  although  the  statute  uses  the  words 

VOL  I.  — 18  273 


(264)  OFFENCES  AGAINST  PROPERTY. 

'  shall  forge  a  will,'  it  was  sufficient  to  lay  it  either  way.  R.  v.  Birch  and  Mar- 
tin, Leach,  !)2  ;  East,  P.  C.  980  ;  2  Bl.  R.  790.  And  therefore,  in  general,  if  it  can 
be  collected  from  the  forged  writing  itself  that  it  assumes  to  be  a  bond,  &c.,  it 
may  be  averred  in  the  indictment,  either  that  the  defendant  forged  a  certain 
bond,  or  that  he  forged  a  certain  writing  purporting  to  be  a  bond.  Thus,  in 
Taylor's  case  (R.  v.  Taylor,  Leach,  255;  East,  P.  C.  977),  the  defendant  was 
charo-ed  with  forging  a  receipt  for  the  sum  of  £20,  as  foUoweth  :  '  Re'd.  R.  Wil- 
son.' And  in  Testick's  case  (1  East,  181),  the  tenor  set  out  was  :  '  Received 
the  contents  above,  by  me,  William  Withers ; '  and  this  was  holden  to  be  prop- 
erly described  as  a  receipt.  In  fact,  in  such  case  the  very  terms  of  the  instru- 
ment showed  it  to  be  a  receipt. 

"  The  purport  of  a  writing  is  that  which  appears  on  the  face  of  that  writing 
(R.  V.  Gilchrist,  Leach,  753)  ;  if,  therefore,  the  forged  writing  assumes  in  terms 
to  be  a  will,  bond,  or  receipt,  it  may  be  described  as  purportiny  to  be  a  will,  bond, 
or  receipt.  But  in  alleging  the  purport  of  a  forged  writing,  great  caution  is 
necessary ;  for  unless  it  can  be  collected  plainly  from  the  terms  of  the  writing 
set  forth  that  it  is  in  form  and  assumes  to  be  that  particular  instrument  which, 
according  to  the  allegation,  it  purports  to  be,  the  indictment  will  be  vicious.  R. 
V.  Hunter,  R.  &  R.  510;  R.  v.  Birkett,  lb.  251.  Thus,  in  William  Jones'  case 
(Leach,  243  ;  East,  P.  C.  883;  Doug.  302),  the  indictment  alleged,  '  purporting 
to  be  a  bank  note  ; '  the  writing  set  forth  was  as  follows :  'No.  F.  94 G.  I  prom- 
ise to  pay  John  Wilson,  Esquire,  or  bearer,  ten  pounds,  London,  March  4th, 
1776,  for  self  and  company  of  my  bank  in  England,  entered,  S.  Jones.'  And 
the  court  were  of  opinion  that  the  paper  writing  did  not  purport  to  be  a  bank 
note,  and,  therefore,  that  the  indictment  was  repugnant.  So  an  indictment  for 
forging  a  bill  of  exchange,  as  purporting  to  be  directed  to  John  A'ing,  by  the  name 
and  addition  of  John  iiing,  Esq.,  was  for  the  same  reason  holden  to  be  vicious. 
R.  V.  Jeremiah  Reading,  Leach,  672,  The  same  was  holden  of  an  indictment 
which  described  the  subscription  C.  Oliver  as  purporting  to  be  the  name  of 
Christopher  Oliver.  R.  v.  Reeves,  Leach,  933.  The  objection  was  at  first  over- 
ruled by  Heath  and  Lawrence  J  J.,  and  Thomson  B.,  who  thought^  that  there 
was  a  shade  of  difference  between  this  case  and  that  of  Gilchrist ;  and  it  does 
not  appear  what  the  ultimate  opinion  was.  In  Lovell's  case  (East,  P.  C.  990 ; 
Leach,  282),  the  indictment  ran  thus:  'purporting  to  be  directed  to  Messrs. 
Drummond  and  Co.,  Charing  Cross,'  by  the  name  of  Mr.  Drummond ;  and  the 
indictment  was  held  to  be  good,  but  it  does  not  appear  that  the  objection  was 
taken."  An  indictment  for  uttering  as  true  a  forged  promissory  note,  purporting 
to  be  made  by  A.,  payable  to  B.,  or  order,  is  proved  by  evidence  of  the  uttering 
of  such  note  with  the  indorsement  of  B.'s  name  on  the  back  thereof.  Cona.  v. 
Adams,  7  Met.  50. 

"  In  Gilchrist's  case  (Leach,  753  ;  East,  P.  C.  982),  the  indictment  charged 
the  defendant  with  forging  a  paper  writing,  &c.,  purporting  to  have  been  signed 
by  Thomas  Exon,  clerk,  and  to  be  directed  to  George  Lord  Kinnaird,  AVilliara 
Morland,  and  Tbomas  Hammersley,  of,  &c.,  bankers  and  partners,  by  the  name 
and  description  of  Messrs.  Rawson,  Morland,  and  Hammersley  ;  the  tenor  of  the 
bill  was  then  set  out  as  follows  :  *  Messrs.  Rawson,  Morland,  and  Hammersley, 

274 


FORGERY,    COINING,    UTTERING,    ETC.  (-*5-i) 

please  to  pay,  &c.,  (signed)  T.  Exon ; '  and  the  indictment  was,  by  the  ten 
judjijes  present  at  ihe  conference,  liolden  to  be  rcpup;nant  and  defective,  for  it 
could  not  purport  to  be  directed  to  Lord  Kinnaird,  since  his  name  did  not  ap- 
pear upon  the  bill. 

"  And  with  respect  to  the  word  purport,  it  is  to  be  observed,  generally,  that 
its  use  is  to  show  that  the  forged  writing  falls  within  the  prohibited  description ; 
and  therefore  no  other  description  should  be  given  under  the  word  purport,  ex- 
cept of  the  particular  nature  of  the  forged  writing,  as  that  it  purports  to  be  a 
bond,  a  bill  of  exchange,  a  bank  note,  or  the  like.  Any  further  description  is 
highly  objectionable,  since  it  is  unnecessary,  and  exposes  the  record  to  great 
danger  from  variance.  See  ^Mr.  Justice  Bullcr's  observations,  R.  v.  Gilchrist, 
Leach,  753. 

"  And  the  same  objection  applies  to  giving  any  other  description  of  the  writ- 
ten instrument  (whose  tenor  is  afterwards  set  forth),  beyond  that  of  its  general 
nature. 

"  The  defendant  was  indicted  for  forging  and  uttering  a  bill  of  exchan<'-e, 
requiring.  Sec,  and  signed  by  Henry  HulcMnaon,  for,  &c.  Upon  the  trial,  the 
prosecutor  proved  that  the  signature  Henry  Hutchinson  was  forged;  it  was  then 
objected  that  the  indictment,  averring  it  to  have  been  signed  by  him,  was  dis- 
proved ;  and  so  the  judges  held,  upon  reference  to  them  after  conviction.  East, 
P.  C.  985.  And  an  indictment  will  be  defective,  if  it  allege,  after  describim' 
the  forged  writing,  'by  which  A.  is  bound  to  li.,'  for,  since  it  is  a  forgery,  A. 
could  not  be  bound  by  it.     Bac.  Abr.  tit.  Ind.  556."     Stark.  C.  P.  117. 

"Where  a  bill  of  parcels  is  of  this  tenor,  viz. :  "  Mr.  J.  L.  bought  of  E.  and 
O.  —  the  above  charged  to  G.  C.,"  the  purchaser,  J.  L.,  added  these  words, 
"  by  order  of  C.  C.,"  it  was  held,  that  the  addition  amounted  to  an  acquittance 
or  discharge,  and  was  a  forgery  within  the  Massachusetts  statute.  Com.  v. 
Ladd,  15  Mass.  526. 

A  bill  issued  by  a  bank  in  another  State,  is  a  promissory  note  under  section 
third  of  the  Mass.  Rev.  Stat.  chap.  127.     Com.  v.  Ripley,  Thacher's  C.  C.  67. 

"  An  indictment  charged  the  defendant  with  forging  a  bond  and  writing  oblig- 
atory. The  statute  upon  which  it  was  founded  mentions  bond  and  also  writing 
obligatory.  The  instrument  set  forth  purported  to  be  a  bond,  but  the  judge 
held  that  it  was  properly  described.  R.  v.  Dunnett,  East,  P.  C.  985.  For  a 
bond  is  a  writing  obligatory,  and  at  all  events,  semlle,  the  subsequent  descrip- 
tion would  be  but  surplusago."     Stark.  C.  P.  11 7. 

An  indictment  charging  the  forging  of  "  a  certain  bond,"  instead  of  a  certain 
paper  writing  purporting  to  be  a  bond,  is  good.     State  v.  Gardiner,  1  Iredell,  27. 

So  of  an  indictment  which  mentions  the  instrument  forged  as  an  instrument 
of  writing  purporting  to  be  an  order  drawn  by  A.  on  B.  for  nine  dollars.  Mc- 
Guire  V.  State,  37  Ala.  IGl. 

"  In  Bigg's  case,  the  prisoner  was  cliarged  with  erasing  an  indorsement  on  a 
bank  note ;  it  turned  out  in  evidence  that  the  inscription  charged  to  have  been 
erased  had  been  written,  according  to  the  custom  of  the  bank,  upon  the  inside 
and  face  of  the  bill.     The  jury  found  specially,  that  an  inscription  so  written 

275 


("264)  OFFENCES  AGAINST  PROPERTY. 

was  commonly  called  an  indorsement,  and  a  majority  of  the  judges  held,  that  the 
description  was  correct."     Stark.  C.  P.  11 7. 

An  order  on  the  cashier  of  the  Bank  of  the  United  States  is  evidence  in  sup- 
port of  an  indietnieiit  for  forging  an  order  on  the  cashier  of  the  corporation  of 
the  Bank  of  the  United  States.     U.  S.  v.  Hinman,  1  Bald.  292. 

Instruments  of  other  specific  denominations  may,  it  seems,  be  described  as 
warrants  or  orders,  if  they  be  in  effect  such.  Lockett's  case.  East,  P.  C.  940; 
Leach,  11 0 ;  R.  v.  Shcppard,  Leach,  265  ;  East,  P.  C.  944.  And  a  bill  of  ex- 
change, it  has  been  held,  may  be  laid  as  an  order  for  the  payment  of  money, 
Willoughby's  case.  East,  P.  C.  944.  "Where  the  forged  instrument  is  actually 
within  the  meaning  of  th(j  statute  on  which  you  intend  framing  your  indict- 
ment," says  Mr.  Archbold,  C.  P.  357,  "but  does  not  sufliciently  appear  to  be 
so  on  the  face  of  it,  you  must,  if  the  instrument  be  set  out,  not  only  set  out  a 
literal  copy  of  it  in  the  indictment,  but  must  also  add  such  averments  of  extrin- 
sic fects  as  may  be  necessary  to  make  it  appear  upon  the  face  of  the  record  that 
tlie  forged  instrument  is  one  of  those  intended  by  and  described  in  the  statute. 
Thus,  for  instance,  where,  by  the  usage  of  a  public  office,  the  bare  signature 
of  a  party  upon  a  navy  bill  operated  as  a  receipt,  an  indii/tmcnt  for  forging 
such  a  receipt,  setting  forth  the  navy  bill  and  indorsement,  and  charging  the 
defendant  with  having  forged  '  a  certain  receipt  of  money,'  to  wit,  the  sum  of 
twenty-five  pounds,  mentioned  and  contained  in  the  said  paper  called  a  navy 
bill,  which  forged  receipt  was  as  follows  :  that  is  to  say  —  '  William  Thornton, 
William  Hunter,'"  washolden  bad,  because  it  did  not  show,  by  proper  averments, 
that  these  signatures  imported  a  receipt.  R.  ik  Hunter,  2  Leach,  624  ;  2  East, 
P.  C.  928.  So,  where  an  indictment  charged  the  defendant  with  forging  a  re- 
ceipt in  the  handwriting  of  Henry  Hargreaves,  as  thus  :  "  Received,  H.  H.,"  it 
was  holden  that  the  indictment  was  bad,  because  there  was  nothing  to  show 
what  H.  H.  meant.  K.  v.  Barton,  1  Mood.  C.  C.  141.  See  R.  v.  Testick,  1  East, 
181,  n. ;  ante,  p.  274  (see  Archbold's  C.  P.  p.  46).  So  the  words,  "settled, 
Sam.  Hughes,"  written  at  the  foot  of  a  bill  of  parcels,  were  held  of  themselves 
to  import  a  receipt  of  acquittance,  and  that  no  averment  was  necessary  that  the 
word  "  settled  "  meant  a  receipt  or  acquittance.  R.  v.  Martin,  1  Mood.  C.  C. 
483  ;  7  C.  &  P.  549  ;  overruling  R.  v.  Thompson,  2  Leach,  810.  And  see  R.  v. 
Houseman,  8  C.  &  P.  180;  R.  v.  Vaughan,  lb.  276  ;  Reg.  v.  Boardman,  2  M.  & 
Rob.  147. 

An  indictment,  Avhich  charged  the  folse  making  to  have  been  in  the  alteration 
of  an  order,  given  by  the  defendant,  without  charging  that  the  alteration  was 
made  after  it  was  circulated  and  had  been  taken  up  by  him,  was  held  to  be  fa- 
tally erroneous.  State  v.  Greenlee,  1  Dev.  523.  For  the  same  reason,  an  in- 
dictment for  forging  a  deed  must  aver  that  it  was  sealed.  3  Keb.  388 ;  3  Inst. 
169  ;  Smith's  case,  3  Salk.  171  ;  though  see  Pa.  v.  Misner,  Add.  R.  44. 

"  An  indictment  for  forging  an  order  for  the  delivery  of  goods,  must  show 
that  the  person  whose  name  is  subscribed  had  authority  to  make  such  an  order. 
East,  P.  C.  958  ;  2  Leach,  3d  ed.  611.  But  it  is  sufficient,  if  the  order  purport 
that  the  party  sending  it  had  such  authority,  although,  in  fact,  he  had  not. 
Fost.  119  ;  East,  P.  C.  940.  And  it  must,  for  the  same  reason,  appear  that  the 
276 


FORGERY,    COINING,    UTTERING,    ETC.  (264) 

person  to  whom  (lie  order  is  directed,  had  possession  of  the  goods."     Stark.  C. 
P.  119. 

An  indictment  for  forging  an  acquittance  need  not  allege  that  it  was  pre- 
sented, or  delivered  to  any  person  as  a  genuine  acquittance  for  goods  delivered, 
and  in  consideration  thereof.     Com.  v.  Ladd,  15  Mass.  526. 

"  And  further  it  has  been  holden,  that  if  the  instrument,  as  stated  with  proper 
averments  upon  (he  record,  be  such  as  if  genuine  would  be  illegal,  the  indict- 
ment will  be  vicious  and  ineffectual ;  and  therefore,  in  the  case  of  the  King  v. 
Mollat,  Leach,  483,  for  forging  a  bill  of  exchange  for  the  payment  of  three 
guineas,  without  specifying  the  payee's  place  of  abode,  the  judges  were  of  opin- 
ion, that  the  forgery  did  not  amount  to  a  capital  offence ;  since,  by  the  stats. 
15  Geo.  III.  c.  51,  and  17  Geo.  III.  c.  30,  made  perpetual  by  27  Geo.  III.  c.  16, 
the  bill  of  exchange,  if  read,  would  not  have  been  valid.  AVall's  case,  East,  P. 
C.  953. 

"  And  in  Smith's  case  (3  Salk.  371),  above  alluded  to,  the  court  were  of  opin- 
ion, that  an  indictment  for  forging  an  assiunment  would  be  vicious,  unless  it 
showed  that  the  assignment  was  signed.  The  distincion  seems  to  he  this:  where 
the  instrument  appears  to  be  valid,  an  indictment  may  be  maintained,  although, 
from  some  collateral  defect,  that  instrument,  if  genuine,  could  never  legally 
have  been  put  in  nee ;  otherwise,  where  the  defect  is  apparent  on  the  face  of 
the  instrument.  Per  Eyre,  J.,  R.  w.  Jones  and  Palmer,  East,  P.  C.  991  ;  Leach, 
405.  Hence  an  indictment  has  been  holden  to  be  maintainable  for  forging  a 
conveyance,  though  the  estate  was  described  by  the  wrong  name  (Japhet 
Crooke's  case,  Str.  901  ;  Fitzg.  57;  Masterman's  notes)  ;  for  forging  a  protec- 
tion in  the  name  of  one  as  member  of  Parliament  who  was  not  so  (R.  v.  Dea- 
kins,  1  Sid.  14'2)  ;  for  forging  and  publishing  a  writing  as  the  last  will  of  a 
person  still  living  (R.  v.  Murphy,  10  St.  Tr.  183;  R.  v.  Sterling,  Leach,  117; 
Cogan's  case,  2  Leach,  503)  ;  for  forging  an  order  for  the  payment  of  a  sea- 
man's prize  money,  though  in  fact  the  seaman  was,  at  the  time  the  note  bore 
date,  in  a  situation  which  rendered  the  order  invalid  under  the  stat.  (R.  v. 
M'Intosh,  East,  P.  C.  956  ;  32  Geo.  III.  c.  34,  s.  2)  ;  and  for  forging  a  name 
to  an  assignment  of  a  bond,  though  the  bond  have  no  seal.  Pa.  v.  Misner, 
Add.  44. 

"  The  uttering  and  publishing  a  promissory  note  with  forged  indorsements 
upon  It,  is  an  offence  within  the  statute  against  forgery,  although  the  pass- 
ing of  the  note  is  accompanied  with  communications  which  would  exonerate 
the  indorsers  if  the  indorsements  were  genuine.  People  v.  Rathbun,  21  Wend. 
609. 

An  indictment  for  forging  a  bank  check  need  not  aver  that  the  check  was 
stamped.     Cross  v.  People,  4  7  Illinois,  132. 

(,/")  The  manner  of  averring  intent  generally  has  been  already  examined. 
Ante,  2,  note.  In  forging  it  is  sufhcient  to  allege  a  general  intention  to  defraud 
a  particular  pennon,  tohlch  intention  must  be  proved  ns  laid.  Powell's  case,  Leach, 
90  ;  R.  V.  Ellsworth,  2  East,  P.  C.  986  ;  and  see  East,  P.  C  988 ;  People  v.  Rath- 
bun.  21  Wend.  509;  Com.  v.  Goodenough,  Thacher's  C.  C.  132;  State  v.  Odel, 
2  Tr.  Con.  Rep.  S.  C.  758  ;  Rose.  Cr.  Ev.  400  ;  3  Brevard,  552 ;  State  v.  Green- 

277 


(264)  OFFENCES  AGAINST  PROPERTY. 

lee,  1  Dev.  523  ;  Wh.  C.  L.  §§  207,  1492.  It  is  not  necessary,  however,  to  allege 
the  intention  to  defraud  ;  where  the  statute  upon  which  such  indictment  is 
founded  does  not  contain  these  terms,  such  intention  is  embraced  in  the  words 
"falsely  and  fraudulently."     State  v.  Calvin,  &c.,  Charlt.  151. 

"  But  it  is  not  essential,  either  in  indictments  for  obtaining  money  under  false 
pretences,  or  in  case  of  forgery,  after  setting  out  the  ialse  pretences  or  forged 
writing,  to  aver  the  particular  means  by  which  the  folse  pretences  were  wade 
available  in  the  one  case,  or  how  the  forged  writing  was  to  be  made  the  instru- 
ment of  fraud  in  the  other.  Thus  an  indictment  for  causing  and  procuring  a 
counterfeit  bank  note  to  be  offered  to  be  passed,  without  stating  by  whom  or 
how  the  accused  caused  and  procured  it  to  be  done,  is  sufficiently  certain  and 
good."     Stark.  C.  P.  122;  see  also  Brown  v.  Com.,  2  Leigh,  7G9. 

"  So,  in  the  case  of  R.  v.  Young,  3  T.  R.  1 76,  above  referred  to,  after  stating  the 
false  pretence,  namely,  a  wager,  which  was  pretended  to  have  been  betted  upon 
a  foot-race,  the  indictment  averred  that  the  defendant,  under  color  and  pretence 
of  having  made  the  bet,  obtained  from  the  prosecutor  the  sum  of  twenty 
guineas,  as  a  part  of  such  pretended  debt,  -with  intent  to  defraud  and  cheat  him 
thereof,  without  stating  by  what  particular  inducement  he  obtained  the  money. 
And  in  the  case  of  forgery,  it  is  sufficient  to  aver  generally,  that  the  defendant 
intended  to  defraud  a  particular  person,  without  showing  upon  the  record  how 
he  intended  to  do  so.  Powell's  case.  Leach,  90 ;  East,  P.  C.  989  ;  Ellsworth's 
case,  2  East,  P.  C.  986 ;  Crook's  case,  East,  P.  C.^992 ;  Stark.  C.  P.  122  " 

^Vhere  the  offence  was  forgery  of  a  deposition,  with  intent  to  procure  a  di- 
vorce, it  is  not  necessary  to  aver  an  intent  to  defraud.  State  v.  Kimball,  50 
Maine,  409, 

The  indictment  is  good  if  it  set  forth  the  instrument  alleged  to  have  been 
forged,  averring  it  to  have  been  falsely  made,  with  the  intent  to  injure  or  de- 
fraud some  person  or  body  corporate,  provided  the  instrument  be  such  as  on  its 
face  to  show  that  the  rights  or  property  of  such  person  may  thereby  be  in- 
jured or  affected  ;  it  is  not  necessary  that  the  facts  and  circumstances  of  the  case 
showing  the  intent,  should  be  specially  set  forth  in  the  indictment ;  it  is  enough 
that  they  be  given  in  evidence  on  the  trial.  Thus,  where  the  defendant  was 
indicted  for  forging  an  instrument  purporting  to  be  a  request  from  the  cashier 
of  a  bank  in  Kentucky  to  the  cashier  of  a  bank  in  New  York,  to  deliver  to 
engravers  the  plates  of  the  bank  for  the  purpose  of  having  new  impressions 
taken,  it  was  held  that  it  was  not  necessary  to  allege  either  that  there  was  such 
a  bank  in  Kentucky,  or  that  the  person  who  purported  to  be  the  writer  of  the 
request  was  cashier  thereof,  and  had  authority  to  make  such  request,  or  that 
there  were  such  plates  in  existence,  and  in  the  possession  of  or  under  the  con- 
trol of  the  cashier  to  whom  the  writing  was  addressed ;  all  this  being  matter  of 
evidence  and  not  necessary  to  be  set  forth  in  the  indictment.  Extrinsic  facts 
are  necessary  to  be  stated  only,  when  the  operation  of  the  instrument  upon  the 
rights  or  property  of  another  is  not  manifest  or  probable  fi'oni  the  fact;  of  the 
writing.  It  was  further  held,  that  it  was  not  necessary  to  aver  in  the  indict- 
ment that  the  Bank  of  Kentucky  was  a  corporation  duly  incorporated  ;  that  it 
was  enough  to  allege  that  the  instrument  set  forth  was  falsely  made,  with  the 
278 


FORGERY,    COINING,    UTTERING,    ETC.  (264) 

intent  to  injure  and  defraud  the  bank ;  and  that  under  such  allegation  an  ex- 
emplification of  the  act  of  incorporation  was  admissible  in  evidence.  People 
t>.  Stearns,  22  Wend.  409, 

Where  the  intent  is  charged  to  be  to  defraud  an  incorporated  bank,  and  its 
corporate  name  is  set  forth,  it  is  sufficient  if  it  appears  to  be  an  incorporated 
bank  williin  the  State  incorporated  by  the  laws  of  the  State.  Com.  v.  Simonds, 
11  Gray  (Mass.),  306.  People  v.  Peabody,  25  Wend.  472;  Peoples.  Davis,  2 
Wend.  309  ;  State  v.  Jones,  1  M'M.  236  ;  Com.  r.  Smith,  6  S.  &  R.  668. 
See  Wh.  C.  L.  §§  297,  1492-8. 

When  and  how  the  incorporation  of  a  bank  is  to  be  averred,  see  Wh.  C.  L. 
§  1488. 

It  seems  that  all  the  partners  in  a  firm  need  not  be  set  out  in  averring  the  in- 
tent to  defraud.  Thu,^,  where  the  first  count  charged  the  offence  to  have  been 
committed  with  intent  to  defraud  D.  L.  and  D.  L.  Jr.  ;  the  second  count  stated 
the  offence  to  have  been  committed  with  intent  to  defraud  the  president  and  di- 
rectors of  said  company ;  the  fourth  count,  &c.,  with  an  intent  to  defraud  D.  L. ; 
the  court,  on  motion  in  arrest  of  judgment,  held,  that  the  omission  of  one  of 
the  partners  in  one  count,  and  of  two  of  them  in  another,  was  not  fatal ;  for 
an  acquittal  on  such  an  indictment  will  always  be  a  bar  to  another  prosecution 
for  the  same  forgery,  though  laid  with  intent  to  injure  some  other  person. 
People  V.  Curling,  1  Johns.  R.  320;  R.  v.  Hanson,  1  C.  &  M.  334.  Post, 
295  (d). 

On  the  subject  of  the  setting  out  of  written  instruments  generally,  see  Wh.  C. 
L.  as  follows  :  — 
1st.  Where  the  instrument,  as  in  forgery  and  libel,  must  be  set  out  in  full,  §  305. 

(a)  In  such  case  literal  exactness  is  necessary,  §  306. 

(b)  "  ']  enor,"  "  Purport,"  and  «  Substance,"  §  307. 
(r)  What  variance  is  fatal,  §  309. 

(d)  Quotation  marks,  §  310. 

(e)  Lost,  destroyed,  obscene,  or  suppressed  writings,  §  311. 
(/)  When  any  part  may  be  omitted,  §  312. 

(r/)  ^Vliere  the  instrument  is  in  a  foreign  language,  or  is  on  its  face  in- 
sensible, §  313. 
2d.  Where  the  instrument,  as  in  larceny,  &c.,  may  be  described  merely  by  gen- 
eral designatir;n,  §  314. 

(a)  U.  S.  Courts,  §  316. 

(i)  Massachusetts,  §  319. 

(c)  Connecticut,  §  320. 

(d)  New  York,  §  321. 

(e)  Pennsylvania,  §  325. 
(/)  New  Jersey,  §  331. 
(_7)  Maryland,  §  332. 

(h)  North  Carolina,  §  333. 
(j)   Georgia,  §  335. 
(j)   Alabama,  §  336. 
(^)  Mississippi,  §  337. 

279 


(265)  OFFENCES  AGAINST  PROPERTY. 

(265)  First  count.  Forging  at  common  law,  a  certificate  of  an 
officer  of  the  American  army,  in  1777,  to  the  effect  that  he  had 
received  certain  stores,  ^c.(Ji) 
That  C.  S.,  late  of  the  county  aforesaid,  yeoman,  on,  &c.,  and 
long  before  and  since,  was  a  clerk  to  the  department  of  the  com- 
missary-general of  military  stores  in  the  armies  of  the  United 
States  of  America,  and  intrusted  and  employed  by  Colonel  B.  F., 
the  commissary-general  of  military  stores  in  the  armies  aforesaid, 
and  by  the  honorable  Continental  Congress,  to  make  payments  and 
take  receipts,  bills  of  parcels,  and  other  vouchers  for  military  stores, 
and  for  divers  articles  necessary  and  fitting  in  the  preparation  of 
military  stores  purchased  for  the  use  of  the  armies  aforesaid,  and 
to  keep  the  accounts  thereof.  And  the  jurors  aforesaid,  upon 
their  oaths  and  affirmations  aforesaid,  do  further  present,  that  the 
said  C.  S.,  on,  &c.,  at  the  City  of  Philadelphia,  in  the  county 
aforesaid,  contriving  and  intending  falsely  and  fraudulently  to 
deceive  and  defraud  the  United  States  aforesaid,  with  force  and 
arms,  falsely,  wickedly,  and  unlawfully  did  make,  forge,  and 
counterfeit,  and  cause  to  be  made,  forged,  and  counterfeited,  a 
certain  writing  purporting  to  be  a  receipt  for  one  thousand  and 
twenty  pounds  and  fifteen  shillings,  and  purporting  to  be  signed 

(J,)  Missouri,  §  338. 
{m)  Tennessee,  §  339. 
(n)    Ohio,  §  340. 
3d.  What  general  legal  designation  will  suffice,  §  341. 

(a)  "  Purporting  to  be,"  §  342. 

(b)  "  Receipt,"  §  343. 

(c)  "  Bill  of  Exchange,"  §  344. 
(rf)  "  Promissory  Note,"  §  345. 
(e)  "Bank  Note,"  §  346. 

(/)  "Money,"  §  347. 

\g)  "  Goods  and  chattels,"  §  348. 

(li)  "Warrant,  order,  or  request  for  the  payment  of  money,"  §  349. 

(i)  "Piece  of  Paper,"  §  349. 
(f/)  This  averment  is  unnecessary  in  statutory  forgeries,  and  does  not  seem  to 
be  required  at  common  law  (People  v.  Rynders,  12  Wend.  425),  though  in  the 
latter  class  of  indictments,  it  is  more  prudent  to  insert  it. 

(k)  Res.  V.  Sweers,  1  Dall.  41.  The  objection  taken  to  this  and  the  succeed- 
ing indictment,  that  the  intent  to  defraud  the  United  States  was  vicious,  was 
overruled  by  M'Kean,  C.  J.,  and  the  defendant  sentenced.  The  trial,  it  must  be 
observed,  was  in  the  Supreme  Court  of  Pennsylvania. 

280 


FORGERY,    COINING,    UTTERING,    ETC.  (267) 

in  the  name  of  one  A.  F.,  in  the  words  and  fioures  following,  to 
wit,  <'  3.  Received  1st  July,  1777,  of  Colonel  B.  F.,  C.  G.  U.  S., 
one  thousand  and  twenty  pounds,  fifteen  shillings,  for  820  bay- 
onet belts,  and  920  cartouch  boxes  for  the  use  of  the  g^rmy. 

"  —  £1020  15—  A.  F." 

to  the  evil  example  of  all  others  in  like  case  offending,  to  the 
great  damage  of  the  United  States,  and  against,  &c.  [Conclude 
as  in  book  1,  chapter  3.) 

(266)  Second  count.     Publishing  the  same. 

And  th(!  jurors  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  further  present,  that  the  said  C.  S.,  contriving  and 
intendiiig  the  said  United  States  falsely  and  fraudulently  to 
deceive  and  defraud,  then  and  there,  with  force  and  arms,  the 
said  writing  so  as  aforesaid  falsely  made  and  counterfeited,  pur- 
porting to  be  a  receipt  for  the  sum  of  one  thousand  and  twenty 
pounds  and  fifteen  shillings,  and  purporting  to  be  signed  in  the 
name  of  the  said  A.  F.,  wickedly,  unlawfully,  and  fraudulently 
did  publish  and  cause  to  be  published  as  and  for  a  true  writing 
and  receipt  of  the  said  A.  F.  ;  which  said  falsely  forged  and 
counterfeited  writing  is  in  the  words  and  figures  following,  to 
wit,  "  3.  Received  1st  July,  1777,  of  Colonel  B.  F.,  C.  G.  U.  S., 
one  thousand  and  twenty  pounds  fifteen  shillings,  for  820  bay- 
onet belts,  and  920  cartouch  boxes  for  the  use  of  the  army. 

"  — £1020  15—  A.  F." 

(he  the  said  C.  S.,  at  the  time  of  publishing  the  said  false  and 
counterfeit  writing,  there  by  him  in  form  aforesaid,  well  knowing 
the  said  writing  to  have  been  falsely  forged  and  counterfeited  as 
aforesaid),  to  the  evil  example  of  all  others  in  like  case  offending, 
to  the  great  damage  of  the  said  United  States,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(267)  Forgery.  Altering  a  certificate  of  an  officer  of  the  American 
army  in  1778,  to  the  effect  that  he  had  received  for  the  use  of 
the  troops  at  Carlisle  certain  articles  of  clothing.  Offence  laid 
at  common  laiv,  the  intent  being  to  defraud  the  United  States. (i) 

That  C.  S.,  late  of  the  county  aforesaid,  yeoman,  on,  &c.,  was 
a  deputy  commissary-general  of  military  stores  in  the  armies  of 
(i)  R.  V.  Sweers,  1  Dall.  41. 

281 


(267)  OFFENCES  AGAINST  PROPERTY. 

the  United  States  of  America,  and  intrusted  and  employed  by 
Colonel  B.  F.,  the  commissary-general  of  military  stores  in  the 
armies  aforesaid,  and  by  the  honorable  Continental  Congress,  to 
make  purchases  of  military  stores  and  of  divers  other  articles 
necessary  and  fitting  in  the  preparation  of  military  stores,  for  the 
use  of  the  armies  aforesaid,  and  to  make  payments  and  take 
receipts,  bills  of  parcels,  and  other  vouchers  therefor.  And  the 
jurors  aforesaid,  upon  their  oaths  and  affirmations  aforesaid,  do 
say,  and  further  present,  that  the  said  C.  S.,  on,  &c.,  at  the  City 
of  Philadelphia,  in  the  county  aforesaid,  having  in  his  cu:<tody 
and  possession  a  certain  bill  of  parcels  or  account,  with  a  certifi- 
cate and  receipt  all  in  writing,  for  a  parcel  or  quantity  of  flannel 
cloth  by  him  purchased  of  one  M.  D.,  for  the  use  of  the  laboratory 
of  the  same  armies,  and  which  said  writing  was  in  the  words, 
figures,  ciphers,  and  letters  following,  that  is  to  say  :  — 

"  U.  S.  A. 

To  M.  D.,  Dr. 

«  1778,  Feb.  4th.     To  57  &  a  qr.  yds.  flannel,  32s.  6c?.  £83     5     7 

To  9  yds.  do.       Sos.  15  15     0 

To  107  &  3  qr.yds.  do.       52s.  6d.  282  16  10 


£318  17     5" 


"  I  do  certify,  that  the  above  was  purchased  and  delivered  to 
me  for  the  use  of  the  laboratory  at  Carlisle. 

"  I.  C,  Cap.  of  the  Artillery:' 
And  on  the  back  side  of  which  said  writing  is  indorsed  and  writ- 
ten the  words  following:  "  Received  the  within  contents  in  full, 
M.  D. ;"  he  the  said  C.  S.,  afterwards,  to  wit,  on  the  same  day 
and  year  aforesaid,  at  Philadelphia  aforesaid,  in  the  county  afore- 
said, with  force  and  arms,  the  said  bill  of  parcels  or  writing 
falsely,  fraudulently,  and  deceitfully  did  alter  and  cause  to  be 
altered,  by  falsely  making,  forging,  and  adding  the  figure  4  to 
and  before  the  figure  9,  in  the  second  item  of  the  said  bill  of 
parcels  or  writing,  which  figures  and  letters  did,  before  such  last 
mentioned  forgery,  import  and  signify  nine  yards,  but  by  reason 
and  means  of  such  last  mentioned  forgery  and  addition  did  be- 
come, import,  and  signify  forty-nine  yards;  and  also  by  forging 
and  altering  the  figure  1,  in  the  sum  of  the  said  second  item  in 
the  bill  of  parcels  or  writing  aforesaid,  to  the  figure  8 ;  which 
282 


FORGERY,    COINING,    UTTERING,    ETC.  (268) 

figures  did,  before  such  last  mentioned  alteration  and  forgery,  im- 
port and  signify  fifteen  pounds  and  fifteen  shillings,  but  by  reason 
and  means  of  such  last  mentioned  forgery  and  alteration  did  be- 
come, import,  and  signify  eighty-five  pounds  and  fifteen  shillings; 
and  also  by  falsely  forging  and  altering  the  figure  3  to  the  figure 
4,  and  the  figure  8  to  the  figure  5,  in  the  sum  total  or  amount  of 
the  said  bill  of  parcels  or  writing;  which  figures  did,  before  such 
last  mentioned  forgery  and  alteration,  import  and  signify  three 
hundred  and  eighty-one  pounds,  seventeen  shillings,  and  five 
pence,  but  by  reason  and  means  of  such  last  mentioned  forgery 
and  alteration  did  become,  import,  and  signify  four  hundred  and 
fifty-one  pounds,  seventeen  shillings,  and  five  pence,  with  inten- 
tion to  defraud  the  United  States  of  America  aforesaid  of  seventy 
pounds,  of  lawful  money  of  Pennsylvania,  to  the  evil  example 
of  all  others  in  like  case  offending,  to  the  great  damage  of  the 
said  United  States,  and  against,  &:c.  {Conclude  as  in  book  1, 
chapter  3.) 

(268)  Forgery.     Altering  and  defacing  a  certain  registry  and  rec- 
ord, tfc,  under  the  Pennsylvania  act  of  1700. (y) 

That  H.  R.,  &c.,  at,  &c.,  aforesaid,  on,  &c.,  being  an  evil  dis- 
posed person,  and  devising,  designing,  and  intending  evil  to  the 
people  of  this  commonwealth,  under  the  pretext  of  examining 
the  enrolments,  registers,  and  records  in  the  office  of  the  surveyor- 
general  of  this  commonwealth,  on,  &c.,  aforesaid,  at  the  county 
aforesaid,  with  the  intention  to  defraud  and  deceive  one  G.  R., 
falsely,  deceitfully,  and  corruptly  in  and  on  a  certain  registry  and 
record,  then  and  there  being  and  remaining  as  a  public  record,  in 
the  office  of  the  surveyor-general  of  this  commonwealth,  to  wit, 
in  book  F.,  and  on  the  page  of  the  said  book  numbered  one  hun- 
dred and  ninety-five,  containing  the  list  of  returns  made  by  him, 
the  said  H.  R.,  while  acting  as  deputy-surveyor  of  the  surveyor- 
general  of  this  commonwealth,  did  then  and  there  falsely  alter 
and  deface  the  registry  and  records  of  said  office  and  of  this  com- 
monwealth, by  a  false  and  corrupt  interlineation  made  in  writing 
and  figures,  as  follows,  to  wit,  in  the  said  book  F.,  and  on  the 

(y)  Ream  v.  Com.,  3  S.  &  R.  207.  The  judgment  of  the  Quarter  Sessions  of 
Dauphin  County,  passing  sentence  on  tliis  indictment,  was  affirmed  by  the  Su- 
preme Court. 

283 


(270)  OFFENCES  AGAINST  PROPERTY. 

page  of  said  book  numbered  therein  one  hundred  and  ninety- 
five,  and  between  the  lines  of  writing  on  said  page,  counted  from 
the  upper  line  of  said  page,  including  the  said  upper  line,  num- 
bers twenty-three  and  twenty-four:  "  April,  1794,  II.  R.,  in  right 
of  S.  S.,  161  acres  and  95  perches."  To  the  great  damage  of 
the  said  G,  R.,  contrary,  &c.,  and  against,  &c.  ( Conclude  as  in 
book  1,  chapter  3.) 

(269)  For  forging,  ^c,  a  hill  of  exchange,  an  accepta^ice  thereof, 
and  an  indorsement  thereon. {k~) 

That  defendant,  &c.,  feloniously  did  falsely  make,  forge,  and 
counterfeit,  and  cause  and  procure  to  be  falsely  made,  forged, 
and  counterfeited,  and  willingly  aid  and  assist  in  the  false  mak- 
ing, forging,  and  courfterfeiting  a  certain  bill  of  exchange;  the 
tenor  of  which  said  false,  forged,  and  counterfeited  bill  of  ex- 
change is  as  follows,  that  is  to  say  :  — 

"  No.  £54  Is.  Bristol,  America,  17th  Sept.,  1797. 

"  Three  months  after  sight,  pay  to  Messrs.  S.  R.  and  Son,  or 
order,  fifty-four  pounds,  one  shilling,  value  received. 

"  To  Mr.  R.  G.  A.  M. 

«  Old   Change,  London." 
with  intention  to  defraud  A.  S.,  against,  &c.,  and  against,  &c. 
(Conclude  as  in  book  1,  chapter  3.) 

(270)  Second  count,  for  uttering,  (/c^) 

Feloniously  did  utter  and  publish (A:'^)  as  true,  a  certain  false, 
forged,  and  counterfeited  bill  of  exchange,  which  said  last  men- 
tioned false,  forged,  and  counterfeited  bill  of  exchange,(A;3)  is  as 
follows,  that  is  to  say  {set  out  the  bill  as  before),  with  intention 
to  defraud  said  A.  S.,  he  the  said  A.  B.,  at  the  said  time  he  so 
uttered  and  published  the  said  last  mentioned  false,  forged,  and 
counterfeited  bill  of  exchange  as  aforesaid,  then  and  there,  to 
wit,  on,  &c.,  at,  &c.,  well  knowing  the  same  to  be  false,  forged, 

(k)  Stark,  C.  P.  455.     See  post,  278. 
(/c')  See  Harrison  y.  State,  3G  Ala,  248. 

(A2)  As  to  when  there  must  be  an  averment  of  the  party  on  whom  the  note 
was  passed,  see  Wh.  C.  L.  §  1499. 

(/>.3)  Not  necessary  to  aver  indorsement.     People  v.  Ah  Woo,  28  Cal.  205. 

284 


FORGERY,    COINING,    UTTERING,    ETC.  (272) 

and  counterfeited,  against,  &c.,  and  against,  &c.     ( Conclude  as  in 
book  1,  chapter  3.) 

(271)   Tldrd  county  for  forging  an  acceptance.(T) 

That  the  said  A.  B.,  having  in  his  possession  a  certain  other 
bill  of  exchange,  whose  tenor  follows,  that  is  to  say  {set  out  the 
bill)*  on.&c,  with  force  and  arms,  at,  &c.,  feloniously  did  falsely 
make,  forge,  and  counterfeit,  and  cause  and  procure  to  be  falsely 
made,  forged,  and  counterfeited,  and  willingly  act  and  assist  in 
the  false  making,  forging,  and  counterfeiting  on  the  said  last 
mentioned  bill  of  exchange,**  an  acceptance  of  the  said  last  men- 
tioned bill  of  exchange,  to  the  tenor  following,  that  is  to  say, 
"Accepted  R.  G.,  Nov.  13th,"  with  intent  to  defraud  the  said  A. 
S.,  against,  &c,,  and  against,  &c.  {Conclude  as  in  book  1,  chap- 
ter 3.) 

(272)  Fourth  cou7it  for  littering  a  forged  acceptance,  as  in  the  last 
count  to  the  *,  and  proceed: 

On  which  last  mentioned  bill  of  exchange  was  written  a  cer- 
tain false,  forged,  and  counterfeited  acceptance  of  the  said  last 
mentioned  bill  of  exchange,  whose  tenor  follow^s,  that  is  to  say, 
"Accepted  R.  G.,  Nov.  13th,"  on,  &c.,  with  force  and  arms,  at, 
&c.,  feloniously  did  utter  and  publish  as  true  the  said  last  men- 
tioned false,  forged,  and  counterfeited  acceptance  of  the  said  last 
mentioned  bill  of  exchange,  with  intent  to  defraud  the  said  A.  S., 
he  the  said  A.  B.,  at  the  time  of  uttering  and  publishing  as  true 
the  said  last  mentioned  false,  forged,  and  counterfeited  accept- 
ance of  the  said  last  mentioned  bill  of  exchange,  then  and  there, 
to  wit,  on,  &c.,  at,  &c.,  well  knowing  the  said  last  mentioned 
false,  forged,  and  counterfeited  acceptance  to  be  false,  forged,  and 
counterfeited,  against,  &c.,  and  against,  &c.  {Conclude  as  in 
book  1,  chapter  3.) 

(I)  It  is  usual,  in  a  count  of  this  kind,  first  to  aver  the  date,  direction,  and 
other  circumstances  ol'  the  bill,  and  then  set  it  out ;  but  the  first  averments  seem 
to  be  superfluous,  and  the  above  form  is  much  more  concise.  It  does  not  appear 
to  be  absolutely  essential  to  set  out  the  whole  of  the  bill,  since  the  acceptance 
only  is  alleged  to  have  been  forged.     See  Stark.  C.  P.  112,  113. 

285 


(275)  OFFENCES  AGAINST  PROPERTY. 

(273')~ Fifth  county  for  forging  an  indorsement^  ^c,  as  in  the  third 
count  to  the  *,  and  proceed: 

An  indorsement(w)  of  the  said  last  mentioned  bill  of  exchange, 
whose  tenor  follows,  &c.,  that  is  to  say,  "  S.  R.  and  Son,"  with 
intent  to  defraud,  &c.  {as  before). 

(274)  Sixth  count,  for  publishing  a  forged  indorsement,  ^c. 
[Same  luith  that  of  the  fourth  count,  substituting  the  indorsement 
and  its  tenor  for  the  acceptance  and  its  tenor)  :  against,  &c.,  and 
against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(275)  For  forgery  at  common  law,  in  antedating  a  mortgage  deed 
with  interd  to  talce  place  of  a  prior  mortgage.{n) 

That  whereas,  a  certain  M.  N.,  yeoman,  on,  &c.,  at,  &c.,  was 
seized  in  his  demesne  as  of  fee,  of  and  in,  two  certain  lots  or 
pieces  of  ground,  one  of  them  situate,  lying,  and  being  in  Prince 
Street,  in  the  Borough  of  Lancaster,  in  Lancaster  County  afore- 
said, containing,  &c. ;  the  other  of  which  said  lots,  situate,  &c., 
and  that  the  said  M.  N.,  the  same  day  and  year  aforesaid,  at 
Lancaster  County  aforesaid,  for  a  good  and  valuable  considera- 
tion to  him,  the  said  M.  N.,  by  a  certain  A.  K.,  before  that  time 
paid,  did  make  and  execute,  seal,  and  deliver,  to  the  said  A.  K., 
a  certain  indenture  and  deed  of  mortgage,  dated  the  same  day 
and  year  aforesaid,  wherein  and  whereby  the  said  M.  N.  did 
grant,  bargain,  sell,  aliene,  release,  and  confirm  unto  the  said  A. 
K.,  his  heirs  and  assigns,  all  those  two  adjacent  lots  or  pieces  of 
ground  before  mentioned  and  described,  situate  on  Prince  Street 
aforesaid,  in  the  borough  and  county  aforesaid,  together  with  the 
houses  and  out-houses,  edifices,  and  buildings  thereon  erected, 
and  all  and  singular  their  appurtenances,  to  have  and  hold  the 
same  to  the  said  A.  K.,  his  heirs  and  assigns  forever,  with  a  pro- 
viso in  the  same  indenture  contained,  that  if  the  same  M.  N., 

(m)   See  Stark.  C-  P.  11 G,  117;  R.  r.  Biggs,  3    P.  Wms.  419. 

(n)  This  indictment,  -which  was  drawn  in  17C3,  is  signed  by  "Benj.  Chew, 
attorney-general,"  but  a  note  on  a  manuscript  copy  with  which,  among  others, 
I  have  been  furnished  by  Mr.  Dillingham,  of  this  city,  states  that  it  was  "  settled 
by  Edwjird  Shippen,  deputy  attorney-general,"  and  afterwards  chief  justice.  I 
think,  however,  the  case  is  rather  a  common  law  cheat  than  forgery. 

286 


FORGERY,    COINING,    UTTERING,    ETC.  (275) 

his  heirs,  executors,  or  administrators  should,  and  did  well  and 
truly  pay,  or  cause  to  be  paid  to  the  said  A.  K.,  or  his  executors, 
administrators,  and  assigns,  the  sum  of  pounds,  on  the 

day  of  together  with  lawful  interest  for  the  same,  then  that 

indenture  to  be  void,  and  the  estate  thereby  granted  to  cease  and 
determine  [here  recite  the  inoof  or  acknowledgment  of  Ike  deed 
and  enrolment^  ivith  the  day,  place,  and  book),  as  by  the  said  in- 
denture, reference  being  thereunto  had,  more  fully  and  at  large 
appears. 

And  that  M.  R.,  of  L.,  in  Lancaster  County  aforesaid,  yeo- 
man, and  D.  S.,  of  the  Borough  of  Lancaster,  in  Lancaster 
County,  attorney  at  law,  well  knowing  the  premises,  and  design- 
ing and  fraudulently  intending  the  said  A.  K.  falsely  and  unlaw- 
fully to  deceive  and  defraud,  and  with  an  intent  to  destroy,  in- 
validate, and  render  of  no  effect  the  mortgage  deed  aforesaid 
and  to  deprive  the  said  A.  K.  of  all  benefit  and  advantage  there- 
from, and  to  lessen  and  destroy  the  security  which  the  said  A.  K. 
had  by  the  said  mortgage  deed,  for  the  payment  of  the  said  sum 
of  pounds,  with  the  interest  thereof,  afterwards,  to  wit,  the 

fourth  day  of  November,  A.  D.  1763,  at  Lancaster  County  afore- 
said, and  within  the  jurisdiction  of  this  court,  with  force  and 
arms,  knowingly,  subtly,  and  falsely  did  forge  and  make,  and 
cause  to  be  forged  and  made,  one  false  writing  sealed,  purporting 
to  be  an  indenture  of  mortgage  from  the  said  M.  N.  to  the  said 
M.  R.,  for  the  tw^o  lots  of  gi'ound  aforesaid,  before  granted  and 
mortgaged  as  aforesaid,  by  the  said  M.  N.  to  the  said  A.  K.,  and 
purporting  to  bear  date  and  to  have  been  sealed  and  delivered, 
by  the  said  M.  N.,  on  the  fourth  day  of  June,  1763,  which  same 
false  and  forged  writing  contains  the  matter  following,  to  wit, 
this  indenture,  &c.  (setting-  forth  the  same),  as  by  the  said  false 
and  forged  indenture  fully  appears.    : 

And  the  inquest  aforesaid  do  further  present,  that  the  said  M. 
R.  and  D.  S.,  the  said  fourth  day  of  November,  at  Lancaster 
County  aforesaid,  fraudulently  and  deceitfully  designing  to  de- 
fraud and  supplant  the  said  A.  K.,  with  an  intent  that  the  said 
false  and  forged  writing  should  invalidate,  defeat,  and  become 
prior  to  the  indenture  of  mortgage  aforesaid  of  the  said  M.  N., 
before  that  time  made,  sealed,  and  delivered  to  the  said  A.  K. 
(the  last  mentioned  indenture  of  mortgage  being  then  and  there 

287 


(276)  OFFENCES   AGAINST    PROPERTY. 


lid  1 


in  full  force,  and  the  moneys  mentioned  in  the  proviso  aforesaid 
being  unpaid  to  the  said  A.  K.,  his  attorney,  or  assigns),  the  same 
false  and  forged  writing  did  antedate,  and  cause  to  be  ante- 
dated, and  to  bear  date  on  a  day  prior  to  the  sealing  and  deliv- 
ery of  the  indenture  aforesaid,  to  the  said  A.  K.,  to  wit,  on  the 
fourth  day  of  .June  aforesaid,  and  the  said  M.  R.  and  D.  S., 
on  the  fourth  day  of  November  aforesaid,  at  the  county  afore- 
said, falsely,  unlawfully,  and  deceitfully  did  prevail  upon  and 
procure  the  aforesaid  M.  N.  to  execute  and  acknowledge,  sign, 
seal,  and  deliver,  as  his  act  and  deed,  the  same  false  and  forged 
writing,  he  the  said  M.  N.  then  and  there  not  knowinsi;  the  same 
false  writing  to  have  been  as  aforesaid  antedated,  but  believing 
the  same  to  have  borne  date  on  the  day  of  the  execution  and  de- 
livery of  the  same,  to  wit,  on  the  fourth  day  of  November  afore- 
said. And  the  inquest,  &c.,  do  further  present,  that  the  said  M. 
R.  and  D.  S.,  afterwards,  to  wit,  the  same  fourth  day  of  Novem- 
ber, at  Lancaster  County  aforesaid,  with  an  intent  the  said  A.  K. 
to  injure,  cheat,  deceive,  and  defraud,  and  to  cause  the  aforesaid 
false  and  forged  writing  to  invalidate,  defeat,  and  become  prior 
to  the  true,  genuine,  and  lawful  deed  aforesaid,  made  and  sealed 
as  aforesaid,  and  delivered  to  the  said  A.  K.,  the  same  false, 
forged,  and  antedated  deed,  as  the  true  and  genuine  deed  of  the 
said  M.  N.,  by  him  made,  executed,  sealed,  and  delivered,  on  the 
fourth  day  of  June  aforesaid,  falsely,  unlawfully,  knowingly, 
fraudulently,  and  deceitfully  did  publish,  and  cause  to  be  pub- 
lished, when  in  truth  the  said  M.  R.  and  D.  S.  then  and  there 
well  knew  the  said  last  mentioned  writing  to  be  false,  forged,  and 
antedated,  and  not  to  have  been  sealed  and  delivered  by  him 
the  said  M.  N.,  on  the  fourth  day  of  June  aforesaid,  but  on  the 
fourth  day  of  November  aforesaid,  to  the  great  injury  and  deceit 
of  the  said  A.  K.,  to  the  evil  example  of  all  others  in  such  case 
offending,  and  against,  &c.     (Conclude  as  in  book  1,  chapter  3.) 

(276)  At  common  law.     Against  a  member  of  a  dissolved  firm  for 
forging  the  naine  of  the  firm  to  a  promissory  note. 

That  D.  G.,  late,  &c.,  on,  &c.,  and  after  the  dissolution  of  the 

copartnership  of  the  said  D.  G.  and  J.  O.,  who  had  shortly  before 

carried  on  trade  and  merchandise,  under  the  name  and  firm  of  O. 

and  G.  at,  &c.,  did  falsely  make,  forge,  and  counterfeit,  and  did 

288 


FORGERY,    COINING,    UTTERING,    ETC.  (278) 

cause  and  procure  to  be  falsely  made,  forged,  and  counterfeited 
a  certain  promissory  note,  for  the  payment  of  money,  signed  by 
the  said  D.  G.  with  the  partnership  names  of  O.  and  G.,  and 
purporting  to  have  been  signed  by  the  said  D.  G.  with  the  part- 
nership name  of  O.  and  G.  before  the  said  partnership  was  dis- 
solved, the  tenor  of  which  promissory  note  is  as  follows  :  "  $5000. 
Ninety  days  after  date  we  promise  to  pay  W.  S.,  or  order,  five 
thousand  dollars,  at  the  State  Bank  at  Elizabeth,  without  defal- 
cation or  discount,  for  merchandise  rec'd,  E.  T.,  30th  December, 
1812,  O.  and  G.,"  with  intent  to  defraud  the  said  J.  O.,  and  to 
render  him  liable  to  the  payment  of  the  said  sum  of  money  in 
the  said  note  mentioned  and  made  payable,  contrary,  &c.(o) 
( Conclude  as  in  book  1,  chapter  3.) 

(277)  Forging  a  letter  of  attorney^  at  common  law. 

That  J.  B.,  late  of  the  said  county,  yeoman,  on,  &c.,  with  force 
and  arms,  at  the  county  aforesaid,  falsely,  fraudulently,  and  de- 
ceitfully did  make,  forge,  and  counterfeit  a  certain  letter  of  attor- 
ney, purporting  to  be  signed  by  one  T.  R.,  with  the  mark  of  him 
the  said  T.  R.,  and  to  be  sealed  and  delivered  by  him  the  said  T. 
B.,  the  tenor  of  which  said  letter  of  attorney  is  as  follows  [here 
recite  letter  of  attorney^  verbatim  et  literatim),  with  an  intent  to 
defraud  the  said  T.  R.,  against,  &c.  (Conclude  as  in  book  1, 
chapter  3.) 

(278)  Forgery  of  bill  of  exchange.     First  count,  forging  the  hill.Qi) 

That  defendant,  on,  &c.,  at,  &c,,  feloniously,  &c.,  did  forge  a 

certain  bill  of  exchange,  which  said  forged  bill  of  exchange  is  as 

(o)  State  y.  Gustine'2  Southard,  744.  Halsey  moved  to  quash:  1.  For  un- 
certainty and  inconsistency.  2.  Because  the  purport  was  incorrectly  stated,  it 
being  stated  to  be  signed  by  defendant,  with  the  partnership  name  of  Ogden  and 
Gustin,  whereas  it  did  not  purport  to  be  signed  by  D.  Gustine.  2  East,  982.  3. 
Because  partner  before  or  after  dissolution  of  partnership,  may  sign  partnership 
name  for  a  separate  business,  and  not  be  liable  to  the  pains  of  forgery.  Chet- 
wood  answered,  and  referred  to  2  Hawk.  344 ;  1  Mod.  78 ;  1  Str.  234,  241,  266  ; 
1  Salk.  381 ;  1  Leach,  239,  410  ;  2  Str.  486  ;  2  Leach,  660.  The  court.  Southard, 
J.,  dissenting,  overruled  the  motion,  and  put  the  defendant  to  plead,  &c. 

(^p)  Arch.  C.  P.  5th  Am.  ed.  444.  This  form  is  drawn  under  the  stat.  11 
Geo.  IV.  and  1  Wm.  IV.  c.  66,  s.  3,  which  makes  it  felony  to  forge  "  any  bill  of 
exchange  or  promissory  note  for  the  payment  of  money."  For  a  more  compre- 
hensive form,  see  No.  269,  &c. 

VOL.  I.— 19  289 


(281)  OFFENCES  AGAINST  PROPERTY. 

follows,  that  is  to  say  :  "  £50.  Bristol,  25th  March,  1830.  Three 
months  after  date  pay  to,"  &c.  &c.  [setting  out  the  hill  of  exchange 
in  words  andfigvres  correctly)^  with  intent  to  defraud  one  J.  N., 
against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(279)  Second  count.      Uttering  the  same. 

That  the  defendant  "did  offer, utter,  dispose  of,  and  put  off"  a 
certain  other,  &c.,  &c. 

(280)  Third  count.     Forging  an  acceptance  on  the  same. 

(If  the  acceptance  be  also  forged,  add  counts  for  it  in  this 
form) :  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  J.  S.,  afterwards,  to  wit,  on  the  year 
and  day  last  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  having  in  his  custody  and  possession  a  certain  other 
bill  of  exchange,  which  said  last  mentioned  bill  of  exchange 
is  as  follows,  that  is  to  say  (here  set  out  the  bill),  he  the  said 
J.  S.,  afterwards,  to  wit,  on  the  day  and  year  last  aforesaid, 
at  the  parish  aforesaid,  in  the  county  aforesaid,  feloniously  did 
forge  on  the  said  last  mentioned  bill  of  exchange  an  acceptance 
("any  indorsement  on,  or  assignment  of,  any  bill  of  exchange, 
or  promissory  note  for  the  payment  of  money,  or  any  acceptance 
of  a  bill  of  exchange")  of  the  said  last  mentioned  bill  of 
exchange,  which  said  forged  acceptance  is  as  follows,  that  is  to 
say,  "Accepted,  payable  at  the  bank  of  Messrs.  C.  &  Co.,  J.  G." 
(or  as  the  acceptance  may  he),  with  intent  to  defraud  the  said 
J.  N.,  against,  &c.,  and  against,  &c.  ( Conclude  as  in  book  1, 
chapter  3.) 

(281)  Fourth  count.      Offering,  ^c,  a  forged  acceptance. 

{Same  as  the  last,  to  the  end  of  the  copy  of  the  bill  of  exchange, 
then  as  foUoics) :  and  on  which  said  last  mentioned  bill  of  ex- 
change was  then  and  there  written  a  certain  forged  acceptance 
of  the  said  last  mentioned  bill  of  exchange,  which  said  forged 
acceptance  of  the  said  last  mentioned  bill  of  exchange  is  as 
follows,  that  is  to  say  [here  set  out  the  acceptance  as  in  the  last 
count),  he,  the  said  J.  S.,  well  knowing  the  premises  last  afore- 
said, afterwards,  to  wit,  on  the  day  and  year  last  aforesaid, 
at  the  parish  aforesaid,  in  the  county  aforesaid,  feloniously  did 
290 


FORGERY,    COINING,    UTTERING,    ETC.  (282) 

offer,  utter,  dispose  of,  and  put  off  the  said  forged  acceptance 
of  the  said  last  mentioned  bill  of  exchange,  with  intent  to 
defraud  the  said  J.  N.  (he  the  said  J.  S.  at  the  time  he  so 
offered,  uttered,  disposed  of,  and  put  off  the  said  forged  accept- 
ance of  the  said  last  mentioned  bill  of  exchange,  then  and  there 
well  knowing  the  said  acceptance  to  be  forged),  against,  &c., 
and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

{If  an  indorsement  be  also  forged,  add  counts  for  it  in   this 
form.) 

Fifth  count. 

And  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  further 
present,  that  the  said  J.  S.,  afterwards,  to  wit,  on  the  day  and 
year  last  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
having  in  his  custody  and  possession  a  certain  other  bill  of  ex- 
change, which  said  last  mentioned  bill  of  exchange  is  as  follows, 
that  is  to  say  {here  set  out  the  bill),  he  the  said  J.  S.,  afterwards, 
to  wit,  on  the  day  and  year  last  aforesaid,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  feloniously  did  forge  on  the  back  of  the 
said  last  mentioned  bill  of  exchange  a  certain  indorsement  of 
the  said  bill  of  exchange,  which  said  forged  indorsement  is  as 
follows,  that  is  to  say,  "J.  S.  &  Co.,"  with  intent  to  defraud  the 
said  J.  N.,  against,  &c.,  and  against,  &c.  {Conclude  as  in  book 
1,  chapter  3.) 

(282)  Sixth  count.      Offering,  ^c,  forged  indorsement. 

{ Same  as  the  last,  to  the  end  of  the  copy  of  the  bill  of  exchangey 
then  as  follows) :  and  on  the  back  of  which  said  last  mentioned  bill 
of  exchange  was  then  and  there  written  a  certain  forged  indorse- 
ment of  the  said  last  mentioned  bill  of  exchange,  which  said  last 
mentioned  forged  indorsement  is  as  follows,  that  is  to  say,  "  J. 
S.  &  Co.,"  he  the  said  J.  S.,  well  knowing  the  premises  last  afore- 
said, afterwards,  to  wit,  on  the  day  and  year  last  aforesaid,  at 
the  parish  aforesaid,  in  the  county  aforesaid,  feloniously  did  offer, 
utter,  dispose  of,  and  put  off  the  said  last  mentioned  indorse- 
ment of  the  said  last  mentioned  bill  of  exchange,  with  intent  to 
defraud  the  said  J.  N.  (he  the  said  J.  S.,  at  the  time  he  so  offered 
uttered,  disposed  of,  and  put  off  the  said  last  mentioned  forged 
indorsement  of  the  said  last  mentioned  bill  of  exchange,  then 

291 


(285)  OFFENCES  AGAINST  PROPERTY. 

and  there  well    knowing   the  said    indorsement  to  be  forged), 
against,  &c.,  and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(283)  For  forging  and  publishing  a  receipt  for  payment  of  money. (jf) 

That  J.  B.,  &c.,  on,  &c.,  at,  &c.,  [averring  forgery  as  in  preced- 
ing forms)  ^  a  certain  acquittance  and  receipt(r)  for  money,  to  wit, 
for  the  sum  of  three  pounds  and  three  shillings,  in  the  words,  let- 
ters, and  figures  following,  that  is  to  say,  "  August  the  26th,  1781. 
Received  of  Mr.  J.  B.  for  Moustone  quarry,  the  full  sum  of  three 
pounds  and  three  shillings.  Received  by  me,  T.  F.,"  with  intent 
to  defraud  the  said  T.  F.,  &c.,  against,  &c.,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(284)  Second  count,  for  uttering. 

That  the  said  J.  B.,  &c.,  on,  &c.,  at,  &c.,  a  certain  false, 
forged,  and  counterfeited  acquittance  and  receipt  for  money,  to 
wit,  for  the  sum  of  three  pounds  and  three  shillings,  feloniously 
did  utter  and  publish  as  true  ;  which  said  last  mentioned  false, 
forged,  and  counterfeited  acquittance  and  receipt  is  in  the  words, 
letters,  and  figures  following,  that  is  to  say  (set  out  the  receipt  as 
before),  with  intent  to  defraud  the  said  T.  F.,  he  the  said  J.  B.,  at 
the  time  when  he  so  uttered  and  published  the  said  last  men- 
tioned false,  forged,  and  counterfeited  acquittance  and  receipt, 
well  knowing  the  same  acquittance  and  receipt,  so  by  him  uttered 
and  published,  to  be  false,  forged,  and  counterfeited,  against,  &c., 
and  against,  &c.    [Conclude  as  in  book  1,  chapter  3.) 

(285)  Forging  a  receipt,  under  the  North  Carolina  statute. (s) 

That  J.  S.,  late  of  the  County  of  Johnston,  in  the  State  of 
North  Carolina,  on,  &c.,  with  force  and  arms,  in  the  County  of 

{q)   Stark.  C.  P.  457. 

(r)  Unless  the  instrument  on  the  face  of  it  appear  to  be  a  receipt,  it  must  be 
shown  by  the  aid  of  proper  averments  that  it  could  so  operate.  Stark.  C.  P. 
116,  117;  Wh.  C.  L.  §343. 

(s)  State  ?).  Stanton,  1  Iredell,  424.  "  Upon  the  form  of  the  indictment,  the 
court  would  perhaps  not  be  bound  now  to  decide,  since  the  other  point  disposes 
of  the  case  here,  But  as  the  point  may  be  material  upon  the  next  trial,  and 
would,  probably,  soon  arise  in  other  cases,  we  deem  it  fit  to  state  the  opinion  we 
have  formed  of  it,  with  the  view  of  settling  the  question.  It  would  have  been 
more  satisfactory  to  us  if  in  the  books  of  criminal  pleading  or  in  an  adjudication 

292 


FORGERY,    COINING,    UTTERING,    ETC.  (285) 

Johnston  aforesaid,  feloniously  did  wittingly  and  falsely  forge, 
make,  and  counterfeit,  and  did  cause  and  procure  to  be  falsely 

a  precedent  or  a  direct  authority  could  have  been  found.  We  have,  however, 
looked  through  the  standard  works  on  crown  law,  from  Lord  Coke's  commentary 
on  the  statute  5  Elizabeth,  c.  14,  in  the  third  institute,  down  to  Mr.  Chitty's 
treatise,  and  through  many  books  of  forms,  without  succeeding  in  finding  an  in- 
dictment upon  these  words  in  that  statute,  '  show  forth  in  evidence,'  or  a  rule 
hiid  down  upon  them.  This  circumstance  may  not  perhaps  be  deemed  so  very 
singular,  when  it  is  remembered  that  the  same  act  contains  also  the  words  '  pro- 
nounce and  publish,'  which  are  more  extensive,  and  include  '  show  forth  in  evi- 
dence.' This  furnishes  a  reason  why  the  indictment  should  always  be  for  '  pro- 
nouncing and  publishing,'  and  none  for  '  showing  forth  in  evidence ; '  since, 
although  every  publication  is  not  showing  forth  in  evidence,  yet  showing  forth 
in  evidence  is  a  publishing  of  it.  Lord  Coke  saying  that  using  any  words,  written 
or  oral,  whereby  the  instrument  is  set  forth  or  held  up  as  true,  is  '  to  pronounce 
and  publish  it.'  We  have  therefore  only  principle  for  our  guide,  and,  being  so 
guided,  we  have  arrived  at  the  conclusion  that  the  second  count  is  sufficient. 

"In  the  first  place,  we  adhere  to  Britt's  case,  3  Dev.  122,  that  the  words 
'  show  forth  in  evidence,'  refer  to  a  judicial  proceeding.  The  question  then  is, 
whether  the  particular  proceeding  must  be  set  forth  at  large  in  the  indictment, 
or  may  not  be  shown  on  evidence  under  the  general  words  used  in  the  statute 
and  in  this  indictment. 

"  It  seems  to  be  proper,  and  perhaps  may  be  said  to  be  necessary,  when  an 
offence  is  created  by  statute,  to  describe  it  in  the  indictment,  whether  consisting 
of  the  commission  or  omission  of  particular  acts,  or  of  certain  acts  accompanied 
by  a  particular  intent  in  the  words  of  the  statute.  This  is  certainly  so,  unless 
for  a  word  or  phrase  in  the  statute  another  is  used  in  the  indictment  which  i.s 
clearly  of  the  same  legal  import,  or  has  a  broader  sense  including  that  in  the 
statute.  Of  this  exception.  Rex.  v.  Fuller  (1  B.  &  P.  180)  is  an  example.  But 
such  examples  are  very  rare  ;  and  on  the  contrary,  the  case  of  Rex.  v.  Davis 
(Leach,  493),  and  others  of  that  kind,  show  how  strictly  the  courts  adhere  to 
the  letter  of  the  law.  Finding  it  thus  to  be  generally  true,  that  in  describing 
the  offence,  the  indictment  must  use  all  the  words  of  the  statute ;  so,  on  the 
other  hand,  it  would  seem  to  be  equally  true  as  a  general  rule,  that  the  indict- 
ment is  sufficient  if  it  contain  all  the  words  of  the  statute.  When  the  language 
of  the  statute  is  transferred  to  the  indictment,  the  expressions  must  be  taken  to 
mean  the  same  thing  in  each.  There  can  be  few  instances  in  which  the  same 
words  thus  used,  ought  to  or  can  be  received  in  a  different  sense  in  the  one  in- 
strument from  that  in  the  other.  As  it  is  certain  that  the  indictment  was  intended 
to  describe  the  off"ence  which  the  statute  describes,  it  follows,  from  the  use  of 
the  very  same  language  in  both,  that  the  one  means  what  the  other  does,  neither 
more  nor  less.  It  is  true  that  some  few  exceptions  from  this  rule  have  been 
established  by  adjudications,  but  they  have  not  appeared  to  us  to  embrace  the 
present  case.  Thus,  a  statute  may  be  so  inaccurately  penned,  that  its  language 
does  not  express  the  whole  meaning  the  legislature  had;  and  by  construction, 
its  sense  is  extended  beyond  its  words.     In  such  a  case,  the  indictment  must 

293 


(285)  OFFENCES  AGAINST  PROPERTY. 

made,  forged,  and  counterfeited,  and  did  willingly  act  and  assist 
in  the  false  making,  forging,  and  counterfeiting  a  certain  receipt, 
which  said  false,  forged,  and  counterfeited  receipt  is  as  follows, 
that  is  to  say,  "  Received  of  J.  S.  thirty-five  dollars  and  ninety- 
one  cents,  this  22d  day  of  May,  1838,  in  part  of  the  rent  of  land 
that  I  rented  to  him  for  the  year  1837.  W.  W." 

with  intention  to  defraud  one  W.  W.,  against,  &c.,  and  against, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 

contain  sucli  averments  of  other  facts  not  expressly  mentioned  in  the  statute,  as 
will  bring  the  case  within  the  true  meaning  of  the  statute ;  that  is,  the  indict- 
ment must  contain  such  words  as  ought  to  have  been  used  in  the  statute,  if  the 
legislature  had  correctly  expressed  therein  their  precise  meaning.  In  State  v. 
Johnson,  1  Dev.  360,  for  example,  it  was  held,  that  besides  charging  in  the 
words  of  the  act,  that  the  prisoner,  being  on  board  the  vessel,  concealed  the 
slave  therein,  the  indictment  should  have  charged  a  connection  between  the 
prisoner  and  the  vessel,  as  that  he  was  a  mariner  belonging  to  her ;  because  that 
was  the  true  construction  of  the  act.  So,  where  a  statute  uses  a  generic  term, 
it  may  be  necessary  to  state  in  the  indictment  the  particular  species  in  respect 
to  which  the  crime  is  charged.  As,  upon  a  statute  for  killing  or  stealing  '  cat- 
tle,' an  indictment  using  only  that  word  is  not  sufEcient,  but  it  ought  to  set  forth 
tie  kind  of  cattle,  as  a  horse  or  a  cow.  Rex.  v.  Chalkeley,  R.  &  R.  258.  But 
where  a  statute  makes  a  particular  act  an  offence,  and  sufficiently  describes  it 
by  terms  having  a  definite  and  specific  meaning,  without  specifying  the  means 
of  doing  the  act,  it  is  enough  to  charge  the  act  itself,  without  its  attendant  cir- 
cumstances. Thus,  upon  a  statute  making  it  felony  to  endeavor  to  seduce  a 
soldier  from  his  duty,  an  indictment  is  good  which  charges  such  '  an  endeavor,' 
without  stating  the  mode  adopted.  Fuller's  case,  before  cited.  So,  in  the  in- 
dictments founded  on  the  words  'pronounce  and  publish,'  in  this  same  statute 
of  Elizabeth  (which  are  not  ours),  the  precedents  uniformly  charge  '  the  pro- 
nouncing and  publishing  of  the  forged  instrument  as  true,'  without  stating  the 
means  by  which,  or  the  person  to  whom  it  was  published.  Upon  the  more 
modern  English  statutes  against  '  putting  off  or  disposing  of  forged  or  counter- 
feit money  or  bank  notes,  it  is  also  held,  that  the  circumstances  need  not  be 
stated.  Rex.  v.  Holden,  et  al.  2  Taunt.  334.  We  do  not  perceive  why  the  same 
principle  does  not  apply  to  the  other  words  '  show  forth  in  evidence,'  used  in  the 
act  of  Elizabeth,  and  in  our  act;  and  we  are  not  aware  of  any  disadvantage  to 
the  prisoner  from  the  omission  to  set  out  in  the  indictment  the  particular  proceed- 
ing in  which  the  evidence  was  offered.  We  agree  that  such  a  judicial  proceed- 
ing must  be  proved ;  and  if  it  be  not  properly  proved,  the  prisoner  can  put  the 
matter  on  the  record  by  an  exception,  and  have  the  same  benefit  thereof  on  a 
motion  to  reverse  the  judgment,  and  for  a  venire  de  novo,  that  he  could  have  from 
a  motion  in  arrest  of  judgment.  Hence  we  hold  the  second  count  in  this  indict- 
ment to  be  good." 

294 


FORGERY,    COINING,    UTTERING,    ETC.  (286) 

say  and  present,  that  the  said  J.  S.,  afterwards,  to  wit,  on,  &c.,  in 
the  County  of  Johnston  aforesaid,  feloniously  did  utter  and  pub- 
lish as  true,  and  show  forth  in  evidence  a  certain  other  false, 
forged,  and  counterfeit  receipt,  which  said  last  mentioned  false, 
forged,  and  counterfeited  receipt  is  as  follows,  that  is  to  say, 
"  Received  of  J.  S.  thirty-five  dollars  and  ninety-one  cents,  this 
22d  day  of  May,  1838,  in  part  of  the  rent  of  the  land  that  I 
rented  to  him  for  the  year  1837.  W.  W." 

with  intention  to  defraud  the  said  W.  W.,  he,  the  said  J.  S.,  at 
the  time  he  so  uttered  and  published,  and  showed  forth  in  evi- 
dence the  said  last  mentioned  false,  forged,  and  counterfeited 
receipt  as  aforesaid,  then  and  there  well  knowing  the  same  to  be 
false,  forged,  and  counterfeited,  against,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chapter  3.) 

(286)  Forging  a  fieri  facias  at  common  law.Qv') 

That  J.  S.,  late,  &c.,  on,  &c.,  unlawfully  and  wickedly  contriv- 
ing to  injure,  oppress,  impoverish,  and  defraud  one  J.  N.,  then  and 
there  unlawfully,  knowingly,  and  falsely  did  forge  and  counter- 
feit a  certain  writing  on  parchment,  purporting  to  be  a  writ,  of 
our  lady  the  queen,  o(  fieri  facias,  and  to  have  issued  out  of  the 
court  of  our  said  lady  the  queen  of  the  bench  at  Westminster,  in 
the  county  aforesaid  ;  which  said  false,  forged,  and  counterfeited 
writing  is  as  follows,  that  is  to  say  {here  set  out  the  fieri  facias 
verbatim),  with  intent  the  said  J.  N.  to  injure,  oppress,  impoverish, 
and  defraud,  to  the  great  damage  of  the  said  J.  N.,  to  the  evil 
example  of  all  others  in  the  like  case  offending,  and  against,  &c. 
{concluding  as  in  book  1,  chapter  3).  ("  This  count,^^  remarks  Mr. 
Archbold,  "  appears  to  be  sufiicient,  without  stating"  that  the  writ 
was  actually  executed,  or  the  prosecutor'' s  goods  seized  under  it." 
However,  it  may  be  as  well  to  add  a  second  count,  similar  to  the 
above,  to  the  end  of  the  statement  of  the  fieri  facias,  and  then  con- 
tinue) :  with  intent  the  said  J.  N.  to  injure,  oppress,  impoverish, 
and  defraud.  And  the  said  J.  S.,  afterwards,  and  before  the  said 
last  mentioned  pretended  writ  purported  to  be  returnable,  to  wit, 
on  the  day  and  year  last  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  the  said  last  mentioned  false,  forged,  and  coun- 
terfeited writing,  knowingly,  falsely,  and  deceitfully,  as  a  true 
(y)  Archbold's  C.  P.  5th  Am.  ed.  392. 

295 


(287)  OFFENCES  AGAINST  PROPERTY. 

writ  of  our  said  lady  the  queen,  of  fieri  facias^  did  cause  to  be 
delivered  to  the  then  sheriff  of  Middlesex,  for  execution  to  be 
made  thereof;  and  afterwards,  and  before  the  last  mentioned  pre- 
tended writ  purported  to  be  returnable,  to  wit,  on  the  day  and 
year  aforesaid,  in  the  parish  aforesaid,  in  the  county  aforesaid, 
did  cause  to  be  seized  and  taken  divers  goods  and  chattels  of 
the  said  J.  N.  to  a  large  amount,  by  pretence  of  the  said  pre- 
tended writ,  to  the  great  damage  of  the  said  J.  N.,  to  the  evil 
example  of  all  others  in  the  like  case  offending,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(287)  Second  count.      Uttering  same. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  J.  S.,  afterwards,  to  wit,  on  the  day  and 
year  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
unlawfully,  falsely,  and  deceitfully  did  utter  and  publish  as  a  true 
writ  of  our  lady  the  queen,  of  fieri  facias,  a  certain  other  false, 
forged,  and  counterfeited  writing  on  parchment,  purporting  to  be 
a  writ  of  our  said  lady  the  queen,  o?  fieri  facias,  and  to  have  issued 
out  of  the  court  of  our  said  lady  the  queen  of  the  bench  at  West- 
minster, in  the  county  aforesaid  ;  which  said  false,  forged,  and 
counterfeited  writing  is  as  follows,  that  is  to  say  (here  set  out'  the 
writ  verbatim),  with  intent  the  said  J.  N.  to  injure,  oppress,  im- 
poverish, and  defraud  (he  the  said  J.  S.,  at  the  time  he  so  uttered 
and  published  the  said  last  mentioned  false,  forged,  and  counter- 
feited writing  as  aforesaid,  then  and  there  well  knowing  the  same 
to  be  false,  forged,  and  counterfeited).  And  the  said  J.  S.,  after- 
wards, and  before  the  said  last  mentioned  pretended  writ  pur- 
ported to  be  returnable,  to  wit,  on  the  day  and  year  last  aforesaid, 
at  the  parish  aforesaid,  in  the  county  aforesaid,  the  last  men- 
tioned false,  forged,  and  counterfeited  writing,  knowingly,  falsely, 
and  deceitfully,  as  a  true  writ  of  our  lady  the  queen,  of  fieri  facias, 
did  cause  to  be  delivered  to  the  then  sheriff  of  Middlesex,  for 
execution  to  be  made  thereof;  and  afterwards,  and  before  the 
said  last  mentioned  pretended  writ  purported  to  be  returnable,  to 
wit,  on  the  day  and  year  last  aforesaid,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  did  cause  to  be  seized  and  taken  divers 
goods  and  chattels  of  the  said  J.  N.  to  a  large  amount,  by  pre- 
tence of  the  said  pretended  writ,  to  the  great  damage  of  the  said 
296 


FORGERY,   COINING,   UTTERING,    ETC.  (288) 

J.  N.,  to  the  evil  example  of  all  others  in  the  like  case  offending, 
and  against,  &c.     {Conclude  as  in  book  1,  chapter  3.) 

(Add  counts  describing'  the  instrument,  Sfc,  in  such  fnanner  as 
ivould  sustain  an  indictment  for  stealing  the  same.) 

(288)  Forgery  of  a  hand  at  common  laio.(^x) 

That  D.  M.  G.,  &c.,  late  of,  &c.,  on,  &c.,  with  force  and  arms, 
in,  &c.,  of  his  own   head  and  imagination,  did  wittingly  and 

(x)  State  V.  Gardiner,  1  Iredell,  27.  Kuffin,  C.  J.:  "As  the  grounds  of  tte 
motion  in  arrest  of  judgment  are  not  stated  in  the  record,  and  the  court  has  not 
had  the  assistance  of  counsel  for  the  prisoner,  it  is  possible  we  may  have  over- 
looked some  point  on  which  the  motion  ought  to  have  been  allowed.  If  so,  it 
will  be  a  source  of  sincere  regret,  for  in  the  absence  of  counsel  of  his  own  selec- 
tion, the  court  has  endeavored  to  discharge  for  the  prisoner  that  office  which,  as 
a  public  duty,  is  devolved  on  us.  After  a  careful  examination  of  the  record,  we 
are  unable  so  to  discover  any  reason  why  the  sentence  of  the  law  should  mot  fol- 
low the  conviction. 

"  In  considering  the  case,  however,  one  or  two  points  have  suggested  them- 
selves, on  which  it  may  be  supposed  an  objection  might  have  been  taken,  and 
on  which,  therefore,  the  court  may  properly  give  an  opinion. 

"  As  the  name  of  the  prisoner  and  that  of  one  of  the  supposed  obligors  in  the 
forged  instrument  appear  to  be  the  same,  it  may  have  been  intended  to  present 
the  qviestion,  whether  the  indictment  can  allege  the  forgery  of  the  whole  instru- 
ment by  one  of  the  parties  to  it.  To  that,  we  think,  there  would  be  several 
answers.  One,  that  the  objection  ought  to  have  been  taken  on  the  evidence, 
and  cannot  be  taken  in  this  manner,  since  it  does  not  legally  follow  that  the 
prisoner  is  the  same  person  with  the  supposed  obligor,  although  the  names  be 
the  same.  But  admitting  the  identity  of  those  persons,  yet  secondly,  that  it 
will  not  vitiate  the  indictment.  The  forgery  may  have  consisted  of  alterations 
of  a  true  instrument,  as  by  making  the  sum  mentioned  in  the  bond  more  or  less 
than  it  was  at  first,  or  by  adding  the  names  of  the  other  two  obligors  without 
their  knowledge  or  consent,  and  that  of  the  obligee.  Now,  it  is  a  settled  rule, 
that  in  such  cases  the  forgery  may  be  charged  specially,  by  alleging  the  altera- 
tions ;  or  thp  forgery  of  the  entire  instrument  may  be  charged ;  and  this  last 
will  be  supported  by  evidence  of  the  alterations.  Rex  v.  Ellsworth,  2  East, 
P.  C.  986,  988.  After  the  alterations,  the  instrument  as  a  whole,  is  a  different 
instrument  from  what  it  was ;  and  therefore,  in  its  altered  state,  is  a  forgery  for 
the  whole.  Possibly,  the  prisoner's  counsel  meant  to  object  to  the  indictment, 
as  a  repugnancy,  that  it  charges  the  forgery  of  a  certain  bond;  whereas  if  it  be 
a  forgery,  it  is  not  a  bond,  but  only  purports  to  be  such.  But  that  objection 
too,  would  be  untenable.  The  statute  uses  the  same  language  :  '  forge  any  deed, 
will,  bond,  &c. ;  '  and  while  it  is  prudent,  so  it  is  generally  safe,  to  follow  in  the 
indictment  the  words  of  the  statute.     Besides,  upon  looking  to  the  precedents, 

297 


(289)  OFFENCES  AGAINST  PROPERTY. 

falsely  make,  forge,  and  counterfeit,  and  did  wittingly  assent  to 
the  falsely  making,  forging,  and  counterfeiting  a  certain  bond  and 
writing  obligatory  in  the  words,  letters,  and  figures,  that  is  to 
say  :  — 

"  Four  months  after  date,  wnth  interest  from  the  date,  we  or 
either  of  us  do  promise  to  pay  E.  M.,  or  order,  the  sum  of  twenty- 
four  dollars  and  thirty-eight  and  three-quarter  cents,  for  value 
received  of  him,  as  witness  our  hands  and  seals  this  19th  day  of 
June,  1839. 

«  D.  M'G.,  [Seal.] 
A.  G.,       [Seal.] 
J.  v.,        [Seal.]" 
with  intent  to  defraud  the  said  E.  M.,  against,  &c.,  and  against, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

(289)  At  common  laiv,  hy  separating  from,  the  back  of  a  note  an  in- 
dorsement of  part  payment.  (?/) 

That  J.  M'L.,  of,  &c.,  on,  &c.,  with  force  and  arms,  at,  &c., 

in  books  of  criminal  pleading,  it  is  found,  that  in  this  respect  the  present  indict- 
ment conforms -to  those  long  settled. 

"  Without  further  lights  as  to  the  points  intended  to  be  relied  on  for  the 
prisoner,  the  court  is  therefore  under  the  necessity  of  saying,  that  there  is  no 
error  in  the  judgment,  and  directing  the  steps  necessary  to  its  execution." 

(jy)  See  State  v.  M'Lenan,  1  Aik.  312 ;  where  the  form  in  this  tenor  was  held 
good  at  common  law.  "  The  briefs  and  arguments  on  the  part  of  the  respond- 
ent," said  the  court,  "  aim  to  convince,  that  the  act  complained  of  in  the  several 
counts  is  not  forgery  within  the  statute,  and  of  this  opinion  are  the  court.  Noth- 
ing must  be  construed  to  be  within  a  penal  statute  but  what  is  fairly  witliin  it. 
The  section  of  the  statute  which  is  relied  upon  for  the  support  of  this  indict- 
ment is  composed  of  particulars,  in  its  description  of  the  offence,  and  the  case 
before  us  is  not  among  those  particulars.  It  is  a  case  omitted.  That  which  is 
called  a  note,  in  the  statute,  can  only  mean  all  that  which,  connected  together, 
composes  the  promise  or  liability  from  the  payor  to  the  payee ;  and  the  making 
or  altering  any  material  part  of  this  is  termed  forgery  by  the  statute.  The 
words  assifjnment  or  indorsement  in  the  statute  are  used  as  synonymous,  and 
mean  a  transfer.  But  if  they  meant  an  indorsement  of  payment,  still  it  is  the 
making  or  altering  of  them  that  constitutes  forgery.  So  of  the  expression  acquit- 
tance or  receipt  for  money- or  other  things,  if  they  would  comprehend  the  indorse- 
ment of  payment,  still  it  is  the  making  or  altering  the  same  that  constitutes  for- 
gery. The  severing  such  indorsement  already  made,  is  a  different  act.  It 
leaves  tlu;  indorsement  legible,  consisting  of  the  same  words  and  letters  as  be- 
fore severed.  In  short,  it  is  not  one  of  those  acts  pointed  out  in  the  statute  to 
be  punished  as  forgery.     But  this  same  act  is  as  great  a  crime  against  public 

298 


FORGERY,    COINING,    UTTERING,    ETC.  (290) 

did  wittingly,  falsely,  and  deceitfully  forge  and  alter,  and  did 
procure  to  be  forged  and  altered  a  certain  promissory  note,  of 
the  tenor  following,  that  is  to  say:  — 

"  Barnet,  Avg-ust  2\sty  1821. 
"  For  value  received,  we  jointly  and  severally  promise  to  pay 
J.  M'L.,  or  his  order,  sixty  dollars,  to  be  paid  in  beef  cattle,  the 
1st  Oct.  1822,  or  grain,  the  1st  Jan.  1823,  with  interest. 

"E.  G. 
R.  M. 
"Attest,  H.  A.  R." 
On  the  back  of  which  promissory  note,  was  then  and  there 
indorsed  twenty  dollars,  in  part  payment  thereof.     And  the  said 
J.  M'L.,  said  indorsement  then  and  there  being  on  the  back  of 
said  note,  and  the  balance  of  said    note  being  then  and  there 
due,  and  no  more,  with  force  and  arms,  wittingly,  falsely,  and 
deceitfully  did    alter   said   note,    by  then    and   there  wittingly, 
falsely,  and  deceitfully  separating  said  indorsement  from   said 
note,  with  intent  to  defraud  and  deceive  the  said  E.  C.  and  R. 
M.,  to  the  great  damage  of  the  said   C.  and  M.,  to  the  evil  ex- 
ample of  others  in  like  cases  offending, Contrary,  &c.,  and  against, 
&c.     ( Conclude  as  in   book  1,  chapter  3.) 

(290)  Forgery  in  altering  apeddler^s  license,  at  common  latv.{z) 

That  G.  K.,  late,  &c.,  on,  &c.,  having  been  recommended  by 
the  Court  of  General  Quarter  Sessions  of  the  Peace  and  Gaol 
Delivery  in  and  for  the  County  of  as  a  proper  person  for 

the  employment  of  a  hawker  or  peddler,  within  this  State,  did 
obtain,  receive,  and  have  a  license  for  that  purpose,  from  the  su- 
preme executive  council  of  this  commonwealth,  under  the  hand 

justice  and  the  public  peace,  as  those  forgeries  that  are  clearly  within  the 
statute.  It  is  as  great  a  crime  inforo  conscientlce.  It  is  an  act  mala  in  se.  It 
is  a  crime  at  common  law.  The  contra  formam  statuti  may  be  treated  as  sur- 
plusage throughout  the  indictment,  and  it  will  remain  a  good  indictment  for  a 
misdemeanor  at  common  law.  See  1  Chit.  C.  L.  238-290th  marginal  page. 
Were  the  act  complained  of  an  offence  only  as  made  such  by  statute,  this  indict- 
ment could  not  be  supported  upon  the  above  principle.  But  this  principle  ap- 
plies to  all  offences  against  government,  against  public  justice,  or  acts  of  extor- 
tion," &c. 

(2)  Drawn  in  1787  by  Mr.  Bradford,  then  attorney -general  of  Pennsylvania. 
See  as  to  forms  for  altering,  post,  317,  &c. 

299 


(291)  OFFENCES  AGAINST  PROPERTY. 

of  the  honorable  C.  B.,  esquire,  then  and  still  being  vice-president 
of  the  same  council,  and  under  the  seal  of  the  State,  which  license 
was  in  the  words  following,  to  wit,  "  By  the  Supreme  Executive 
Council,  &c. :  Whereas,  G.  K.,  the  bearer  hereof,  intending  to 
follow  the  business  of  a  peddler,  within  this  Commonwealth  of 
Pennsylvania,  hath  been  recommended  to  us  as  a  proper  person 
for  that  employment  and  requesting  a  license  for  the  same,  we 
do  hereby  license  and  allow  the  said  G.  K.  to  employ  himself  as 
a  peddler  and  hawker  within  the  said  commonwealth,  to  travel 
with  one  horse,  and  to  expose  and  sell  divers  goods,  wares,  and 
merchandises,  until,  &c.,  one  thousand  seven  hundred  and  eighty- 
six,  provided  he  shall  during  the  said  term  observe  and  keep  all 
laws  and  ordinances  of  the  said  commonwealth  to  the  said  em- 
ployment relating.     Given  under  the  seal,  &c.  C.  B.,  V.  P. 

And  that  he  the  said  G.  K.,  so  being  in  possession  of  the 
said  license,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  with  force  and 
arms,  &c.,  the  said  license  falsely,  fraudulently,  and  deceitfully 
did  alter,  and  cause  to  be  altered,  by  falsely  and  deceitfully 
erasing  the  word  six  in  the  said  license,  and  in  the  place  thereof 
falsely  and  deceitfully  did^make,  forge,  and  add  the  word  seven, 
whereby  the  said  license  so  altered  as  aforesaid,  purporting  to 
be  given,  &c.,  was  made  to  extend,  &c.,  with  intent  to  defraud 
the  said  commonwealth  and  to  deceive  the  citizens  thereof,  to  the 
evil  example  of  all  others,  and  against,  &c.  (Conclude  as  in  book 
1,  chapter  3.) 

(291)  Forgery  of  a  note  tvhich  cannot  he  particularly  described  in 
consequence  of  its  being  destroyed,  (a) 

That,  &c.,  at,  &c.,  on,  &c.,  devising  and  intending  to  cheat  and 
defraud  one  D.  C.  of  his  goods  and  moneys,  did  falsely  and 
fraudulently  forge  and  counterfeit  a  certain  negotiable  promis- 
sory note,  for  the  payment  of  money,  purporting  to  be  made  by 
the  said  D.  C,  payable  to  one  A.  S.  B.,  which  said  false,  forged, 
and  counterfeited  negotiable  promissory  note,  is  to  the  purport 
following,  that  is  to  say  :  — 

"  Ninety  days  after   date,  I  promise   to  pay  to   A.  G.    B.,  or 

>  (a)  See  People  v.  Badgeley,  16  Wend.  53 ;  where  the  fact  of  the  dostrnction 
of  the  note,  as  here  set  forth,  was  held  to  supersede  the  necessity  of  j)leading  it 
according  to  its  precise  form. 

soo 


FORGERY,    COINING,    UTTERING,    ETC.  (293) 

order,  fourteen  hundred  and  twenty-eight  dollars,  value  re- 
ceived. May,  1833.  D.  C.  (Indorsed),  A.  S.  B. : "  A  more  par- 
ticular description  of  which  is  now  here  to  the  jurors  unknown, 
said  note  being  destroyed :  with  intent  to  cheat  and  defraud 
the  said  C.  D.,  &c. 

(292)  Forgery  of  a  note  whose  tenor  cannot  he  set  out  on  account  of 

its  being  in  defendant'' s  possession. 

That  A.  B.,  &c.,  at,  &c.,  falsely  and  fraudulently  did  forge  and 
counterfeit  a  certain  promissory  note,  for  the  payment  of  money, 
purporting  to  be  made  by  one  A.  B.,  payable  on  demand,  to  one 
CD.,  the  tenor  of  which  said  note  is  to  this  inquest  unknown, 
by  reason  that  the  said  A.  B.,  having  the  said  note  in  his  pos- 
session and  custody,  hath  altogether  refused  and  still  doth  re- 
fuse to  produce  the  same,  and  to  permit  the  same  to  be  in- 
spected by  this  inquest,  although  thereto  often  requested,  to  wit, 
by  the  (attorney-general  of  the  commonwealth),  at  and  before 
the  sitting  of  this  inquisition,  but  which  said  note  was  in  sub- 
stance as  follows  [here  set  fortli  the  substance  of  the  note  and  cofi- 
clude  as  in  last  precedent). 

(293)  Forgery  of  ho7id  when  forged  instrument   is  in  defendants 

possession,  (b") 

That,  &c.,  on,  &c.,  at,  &c.,  did  falsely  and  feloniously  make, 
forge,  and  counterfeit,  and  did  then  and  there  willingly  and  felo- 
niously act  and  assist  in  the  false  making,  forging,  and  coun- 
terfeiting, of  a  certain  false,  forged,  and  counterfeited  bond  and 
writing  obligatory  for  the  payment  of  money,  bearing  date  on 
some  day  and  year  to  the  jurors  aforesaid  unknown,  in  a  penal 
sum  to  the  jurors  aforesaid  unknown,  with  a  condition  thereunder 
written  for  the  payment  of  a  certain  sum  to  the  jurors  aforesaid 
unknown,  with  interest  thereon,  to  the  said  J.  K.  (the  defendant), 
purporting  to  have  been  executed  by  one  G.  B.,  late  of,  &c., 
which  said  false,  forged,  and  counterfeited   bond    and  writing 

(b)  People  V.  Kinsley,  2  Cow.  522.  The  second  count  in  this  indictment 
charged  the  defendant  with  destroying  the  alleged  forged  bond  on  some  day  to 
the  jurors  unknown,  and  the  third  count  was  for  uttering  the  same.  Judgment 
was  entered  upon  the  verdict  of  the  jury,  the  court  adopting  the  principles  of 
Com.  j;.  Houghton,  8  Mass.  373. 

301 


(294)  OFFENCES  AGAINST  PKOPERTY. 

obligatory  for  the  payment  of  money,  is  in  the  possession  and 
custody  of  the  said  J.  K.  (the  defendant),  with  intent  to  defraud 
one  J.  C,  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(294)  Fo7'gery  in  Pennsylvania  at  common  law,  in  passing  counter- 
feit hank  notes. (c) 

That  the  said  J.  S.,  on  the  same  day  and  year  aforesaid,  at 
the  county  aforesaid,  with  force  and  arms,  having  in  his  custody 
and  possession  a  certain  other  false,  forged,  and  counterfeited 
paper  writing,  partly  written  and  partly  printed,  purporting  to  be 
a  true  and  genuine  promissory  note  for  the  payment  of  money, 
called  a  bank  note  of  the  Bank  of  North  America,(6i)  and  pur- 
porting to  be  signed  by  J.  N.,  president,  and  also  by  the  cashier 
of  the  said  bank,  the  tenor  of  which  said  last  mentioned  false, 
forged,  and  counterfeited  paper  writing,  partly  written  and  partly 
printed,  purporting  to  be  a  true  and  genuine  promissory  note  for 
the  payment  of  money,  called  a  bank  note  of  the  Bank  of  North 
America,  is  as  follows,  that  is  to  say :  — 

"  X.       I  promise  to  pay  to  D.  C,  or  bearer,  on  demand,       10" 
ten  dollars.     Philadelphia,  26th  of  February,  1808,  n. 
2467,  e.  614.     For  the  president,  directors,  and  com- 
pany of  the  Bank  of  North  America. 
"10  H.  D.,  Jr.,  Cash.  J.  N.,  Pres't.  X" 

falsely,  illegally,  knowingly,  fraudulently,  and  deceitfully  did  utter 
and  publish,  as  a  true  and  genuine  promissory  note  for  the  pay- 
ment of  money,  called  a  bank  note  of  the  Bank  of  North  America, 
the  said  last  mentioned  false,  forged,  and  counterfeited  paper 
writing,  partly  written  and  partly  printed,  purporting  to  be  a  true 
and  genuine  promissory  note  for  the  payment  of  money,  called  a 
bank  note  of  the  Bank  of  North  America,  he,  the  said  J.  S.,  at 
the  time  of  uttering  and  publishing  the  same,  then  and  there  well 
knowing  the  same  to  be  false,  forged,  and  counterfeited,  with 

(c)  Com.  V.  Searle,  2  JJinn.  332.  The  then  Pennsylvania  Act  of  Assembly, 
making  penal  the  passing  of  counterfeit  bank  notes,  used  the  expression  "  pass- 
ing "  alone,  and  consequently  this  count,  independently  of  the  want  of  the  con- 
clusion against  the  statute,  was  held  not  to  comprehend  the  statutory  misde- 
meanor. It  was  sustained,  however,  at  common  law,  and  it  is  on  this  principle 
that  indictments  in  Pennsylvania  at  common  law,  for  forging  and  uttering  coun- 
terfeit notes  of  foreign  banks,  rest.     See  next  form. 

(c')  As  to  averment  of  incorporation,  see  Wh.  C.  L.  §  1488. 
302 


FORGERY,    COINING,    UTTERING,    ETC.  (295) 

intent  to  defraud,  &c.,(c^)  to  the  evil  example  of  others  in  like 
case  offending,  and  against,  &c. 

(295)  Forgery  of  the  note  of  a  foreign  hank  as  a  misdemeanor  at 

common  law. 

That  A.  B.,  late  of,  &c.,  on,  &c.,  with  force  and  arms,  did 
falsely  make,  forge,  and  counterfeit,  and  cause  and  procure  to  be 
falsely  made,  forged,  and  counterfeited,  a  certain  note  in  imita- 
tion of,  and  purporting  to  be,  a  note  issued  by  the  order  of  the 
president,  directors,  and  company  of  [stating'  the  bank),[c^)  for  the 
sum  of  dollars,  purporting  to  be  signed  by  president 

and  cashier,  payable  to  or  bearer,  on  demand,  dated 

one  thousand  eight  hundred  and  which  said  falsely 

made,  forged,  and  counterfeited  note,  partly  written  and  partly 
printed,  is  in  the  words  and  figures  following :  [setting  forth  the 
note),  with  intent  to  defraud  the  said  [if  there  be  proof  of 

the  incorporation  of  the  bank,  you  can  point  the  intent  at  it,  if  not, 
at  the  party  to  ivhoni  the  note  was  probably  7neant  to  be  passed;  a 
general  intent  to  defraud  the  people  of  the  state  or  district  will  do 
when  no  particular  intent  can  be  shown),[d)  against,  &c.  [Con- 
clude as  in  book  1,  chapter  3.) 

And  the  inquest  aforesaid,  upon  their  respective  oaths  and 
affirmations  aforesaid,  do  further  present,  that  the  said  A.  B.,  on 
the  day  and  year  aforesaid,  at  the  county  and  within  the  juris- 
diction aforesaid,  with  force  and  arms,  then  and  there  did  pass, 
utter,  and  publish,  and  attempt  to  pass,  utter,  and  publish,  as 
true,  a  certain  false,  forged,  and  counterfeit  note,  purporting  to 
be  a  note  issued  by  the  said  [as  in  last  count),  for  the  sum  of 
dollars,  signed  by  president,  and  cashier,  pay- 

able to  or  bearer,  on  demand,  and  dated  one  thousand 

eight  hundred  and  which  said  false,  forged,  and  counterfeited 

note,  partly  written  and  partly  printed,  is  in  the  words  and  figures 
following,  to  wit  [setting  forth  note),  the  said  A.  B.,  then  and 

(c2)  As  to  intent,  see  note  (d).  (c3)  See  Wh.  C.  L.  §  1488. 

(d)  See  People  v.  Stearns,  2  Wend.  409.  See  next  form  for  the  general 
methods  of  stating  intent  in  such  cases.  An  intent  to  defraud  A.  &  B.  is  sus- 
tained by  proof  of  an  intent  to  defraud  A.  Veasie's  case,  7  Greenl.  131  ;  Peo- 
ple V.  Curling,  1  Johns.  E.  320 ;  R.  v.  Hanson,  1  C.  &  M.  334.  See  Wh.  C.  L. 
§  297. 

303 


I 


(297)  OFFENCES  AGAINST  PROPERTY. 

there  well  knowing  the  said  note  to  be  as  aforesaid  false,  forged, 
and  counterfeit,  with  intent  to  defraud  {the  party  on  whom  it  was 
passed)^  against,  &c.     {Conclude  as  in  book  1,  chapter  3.) 

(296)  Forging  a  bank  note,  and  uttering  the  same,  under  English 

statute.(ji) 

That  J.  B.,  late  of,  &c.,  laborer,  heretofore,  that  is  to  say,  on, 
&c.,  with  force  and  arms,  at,  &c.,  feloniously  did  forge  and  coun- 
terreit(/)  a  certain  bank  note,(^)  the  tenor(/i)  of  which  said 
forged  and  counterfeited  bank  note  is  as  followeth,  that  is  to  say 
[the  note  is  here  set  out  verbatim),{i)  with  intent{^')  to  defraud  the 
governor  and  company  of  the  Bank  of  England, (y^)  against,  &c., 
and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(297)  Second  count.     Putting  away  same. 

That  the  said  J.  B.,  heretofore,  that  is  to  say,  on,  &c.,  with 
force  and  arms,  at,  &c.,  did  dispose  of  and  put  away  (A;)  a  certain 
forged  and  counterfeited  bank  note,  the  tenor  of  which  said  last 
mentioned  forged  and  counterfeited  bank  note  is  as  followeth, 
that  is  to  say,(/)  with  intent  to  defraud  the  governor  and  com- 
pany of  the  Bank  of  England,  he  the  said  J.  B.,  at  the  said  time 
of  his  so  disposing  of  and  putting  away  the  said  last  mentioned 

(e)  This  form  is  found  in  Starkie's  C.  P.  452. 

(/)  These  are  the  words  of  the  statute  ;  it  is  unnecessary  to  allege  that  he 
did  falsely  forge  and  counterfeit.  This  count  is  framed  upon  the  stat.  45  Geo. 
III.  c.  89,  s.  2. 

(^)  It  is  essential  to  show  that  the  instrument  forged  is  of  the  description  pro- 
hibited by  the  statute.  See  VVh.  C.  L.  §  341.  As  to  the  averments  which  are 
necessary,  when  the  forged  writing  does  not  purport  to  be  of  the  kind  prohibited, 
see  Stark.  C.  P.  113. 

(Ji)  As  to  the  words  by  which  the  instrument  is  usually  introduced,  see  Stark. 
C.  P.  109  ;  Lyon's  case,  Leach,  696 ;  Wh.  C.  L.  §  341,  &c. 

(i)  As  to  the  accuracy  with  which  the  forged  writing  should  be  set  out,  see 
Wh.  C.  L.  §  341  ;  Griffin  v.  State,  14  Ohio  (N.  S.),  55. 

(y)  See  Stark.  C.  P.  121,  122,  199,  as  to  the  general  necessity  for  averring  an 
intent  to  defraud  in  case  of  perjury,  the  form  of  the  averment,  and  the  effects 
of  variance. 

(/I)  As  to  averment  of  charter  of  bank,  see  Wh.  C.  L.  §  1488. 

(Jc)  According  to  the  words  of  the  act  45  Geo.  III.  c.  89,  s.  2. 

(I)  Setting  out  the  note. 

304 


FORGERY,    COINING,    UTTERING,    ETC.  (301) 

forged  and  counterfeited  bank  note,  then  and  there,  to  wit,  od, 
&c.,  at,  &c.,  well  knowing  such  last  mentioned  note  to  be  forged 
and  counterfeited,  against,  &c.,  and  against,  &c.  [Conclude  as  in 
book  1,  chapter  3.) 

(298)   Third  count.     Forging  promissory  note. 

Feloniously  did  falsely  make,  forge,  and  counterfeit,  and  cause 
and  procure  to  be  falsely  made, forged,  and  counterfeited,  and  will- 
ingly act  and  assist  in  the  false  making,  forging,  and  counterfeit- 
ing a  certain  promissory  note  for  the  payment  of  money,  the  tenor 
of  which  said  last  mentioned  false,  forged,  and  counterfeited  note 
is  as  followeth,  that  is  to  say  {note,  as  before),  with  intention  to 
defraud  the  governor  and  company  of  the  Bank  of  England, 
against,  &c.,  and  against,  &c.    (  Conclude  as  in  book  1,  chapter  3.) 

(299)  Fourth  count.     Putting  away  same. 

Feloniously  did  dispose  of  and  put  away  a  certain  false,  forged, 
and  counterfeited  promissory  note  for  the  payment  of  money, 
the  tenor  of  which  said  last  mentioned  false,  forged,  and  coun- 
terfeited note  is  as  followeth,  that  is  to  say  {note,  as  before)^  with 
intent  to  defraud  the  governor  and  company  of  the  Bank  of  Eng- 
land, he  the  said  J.  B.,  at  the  said  time  of  his  so  disposing  of 
and  putting  away  the  said  last  mentioned  false,  forged,  and  coun- 
terfeited note,  then  and  there,  to  wit,  on,  &c.,  at,  &c.,  well  know- 
ing the  said  last  mentioned  note  to  be  false,  forged,  and  coun- 
terfeited, against,  &c.j  and  against,  &c.  {Conclude  as  in  book  1, 
chapter  3.) 

(300)  Fifth  count.     Same  as  first.,  with  intent  to  defraud  J.  S. 

Feloniously  did  forge  and  counterfeit  a  certain  other  bank  note, 
the  tenor  of  which  said  last  mentioned  forged  and  counterfeited 
bank  note  is  as  followeth,  that  is  to  say  [note,  as  before),  with 
intent  to  defraud  one  J.  S.,  against,  &c.,  and  against,  &c.  (  Con- 
clude as  in  book  1,  chapter  3.) 

(301)l  Sixth  count.     Putting  away  same. 

Feloniously  did  dispose  of  and  put  away  a  certain  forged  and 
counterfeited  bank  note,  the  tenor  of  which  said  last  mentioned 
forged  and  counterfeited  bank  note  is  as  followeth,  that  is  to  say 

VOL.  I.  -  20  305 


(304)  OFFENCES   AGAINST   PROPERTY. 

{note,  as  before),  with  intent  to  defraud  the  said  J.  S.,  he  the  said 
J.  B.,  at  the  time  of  his  so  disposing  of  and  putting  away  the 
said  last  mentioned  forged  and  counterfeited  bank  note,  then  and 
there,  to  wit,  on,  &c.,  well  knowing  such  last  mentioned  note  to 
be  forged  and  counterfeited,  against,  &c.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chapter  3.) 

(302)  Seventh  count.     Same  as  second,  with  intent  to  defraud  J.  S. 

Feloniously  did  falsely  make,  forge,  and  counterfeit,  and  cause 
and  procure  to  be  falsely  made,  forged,  and  counterfeited,  and 
willingly  act  and  assist  in  the  false  making,  forging,  and  coun- 
terfeiting a  certain  other  promissory  note  for  the  payment  of 
money,  the  tenor  of  which  said  last  mentioned  forged  and  coun- 
terfeited note  is  as  followeth,  that  is  to  say  (note,  as  before),  with 
intention  to  defraud  the  said  J.  S.,  against,  &c.,  and  against,  &c. 
(Conclude  as  in  book  1,  chapter  3.) 

(303)  Eighth  count.     Putti7ig  away  same. 

Feloniously  did  dispose  of  and  put  away  a  certain  other  false, 
forged,  and  counterfeited  promissory  note  for  payment  of  money, 
the  tenor  of  which  said  last  mentioned  false,  forged,  and  coun- 
terfeited note  is  as  followeth,  that  is  to  say  [note,  as  before),  with 
intention  to  defraud  the  said  J.  S.,  the  said  J.  B.,  at  the  said  time 
of  his  so  disposing  of  and  putting  away  the  said  last  mentioned 
false,  forged,  and  counterfeited  note,  then  and  there,  to  wit,  on, 
&c.,  well  knowing  the  same  last  mentioned  note  to  be  false, 
forged,  and  counterfeited,  against,  &c.,  and  against,  &c.  [Con- 
clude as  in  book  1,  chapter  3.) 

(304)  Attempt  to  pass  counterfeit  hank  note,  under  Ohio  statute. 

That  A.  B.,  on  the  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  in  the  County  of  Ham- 

ilton aforesaid,  did  unlawfully  attempt  to  pass  to  one  M.  N.,  with 
intent  then  and  there  to  defraud  the  said  M.  N.,  a  certain  forged 
and  counterfeited  bank  note,  as  a  true  and  genuine  bank  note  of 
the  Bank  of  Corning,  given  for  the  payment  often  dollars,  which 
aforesaid  forged  and  counterfeited  bank  note  then  and  there  was 
of  the  tenor  and  effect  following,  to  wit: 
306 


■23 


FORGERY,    COINING,    UTTERING,    ETC.  (305) 

"STATE   OF  NEW  YORK, 
No.  22G9. 

Ten  Ten 

The  Bank  of  Corning 
Will  pay  ten  dollars  to  the  Bearer 
on  demand.     Corning,  March  9,  1854. 

Ten 
S.  Mallory,  Cash'r.  H.  W.  Bostwick,  Pres't." 

He,  the  aforesaid  A.  B.,  then  and  there  well  knowing  the 
aforesaid  forged  and  counterfeited  bank  note  to  be  forged  and 
counterfeited  ;  the  true  and  genuine  of  which  said  bank  notes  then 
circulated  in  this  State  as  and  for  money. (a) 

(305)  Forging  a  certificate  granted  hy  a  collector  of  the  customs. (rn) 

The  jurors  of  the  United  States  of  America,  within  and  for 
the  circuit  and  district  aforesaid,  on  their  oath  present,  that 
late  of  the  City  and  County  of  New  York,  in  the  circuit  and 
district  aforesaid,  heretofore,  to  wit,  on,  &c.,  with  force  and 

arms,  at  the  City  of  New  York,  in  the  Southern  District  of  New 
York  aforesaid,  and  within  the  jurisdiction  of  this  court,  feloni- 
ously did  falsely  make,  forge,  and  counterfeit  a  certain  official 
document,  granted  by  a  collector  of  customs  by  virtue  of  his 
office,  to  wit,  an  official  document  granted  by  the  collector  of  the 
customs  for  the  Port  and  District  of  the  City  of  New  York  {in- 
sert averment  to  the  effect  that  the  collector.^  as  such,  was  charged 
with  the  duties  of  supervisor  of  the  revenue),  which  said  false, 
forged,  and  counterfeited  official  document  is  as  follows,  that  is 
to  say  [here  insert  the  document  as  altered),  with  intent  to  defraud 
one  against,  &c.,  and  against,  &c.     (  Conclude  as  in  book  1, 

chapter  3.) 

(a)  Warren's  C.  L.  247. 

(?«)  Tliis  form  was  sustained  by  the  District  Court  for  the  Southern  District 
of  New  York,  and  was  held  bad  in  the  Circuit  Court,  for  want  of  an  averment 
that  the  collector  had  been  charged  with  the  duties  of  supervisor  of  the  revenue. 
See  Schruyer's  case,  New  York,  1847.  By  making  the  necessary  averment,  in 
conformity  with  the  act  of  Congress,  the  form  in  the  text  will  probably  be  found 
correct. 

307 


(307)  OFFENCES  AGAINST  PROPERTY. 

Second  count. 
{Same   as  first  count,  svbstitutin^) :  "with   intent  to  defraud 
some  person  or  persons  to  the  jurors  aforesaid  unknown,"  for 
"  with  intent  to  defraud  one  .'' 

(306)   Third  count.     Causing  and  procuring  forgery,  ^c. 
And  the  jurors  aforesaid,  on  their  oath   aforesaid,  do  further 
present,  that  late  of  the   City  and    County  of  New  York, 

in  the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on, 

&c.,  with  force  and  arms,  at  the  City  of  New  York,  in  the  circuit 
and  di^^trict  aforesaid,  and  within  the  jurisdiction  of  this  court, 
feloniously  did  falsely  make,  forge,  and  counterfeit,  and  cause 
and  procure  to  be  falsely  made,  forged,  and  counterfeited,  and 
willingly  aid  and  assist  in  falsely  making,  forging,  and  counter- 
feiting a  certain  official  document,  granted  by  a  collector  of  cus- 
toms by  virtue  of  his  office  [insert  here  averment  in  brackets,  as 
in  last  count),  to  wit,  an  official  document  granted  by  the  collector 
of  the  customs  for  the  Port  and  District  of  the  City  of  New 
York,  which  said  false,  forged,  and  counterfeited  official  docu- 
ment is  as  follows,  that  is  to  say  {as  in  first  and  second  counts 
mentioned),  with  intent  to   defraud   one  against,  &c.,  dnd 

against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

Fourth  count. 

{Same  as  third  count,  substituting-):  "with  intent  to  defraud 
some  person  or  persons  to  the  said  jurors  unknown,"/or  "with 
intent  to  defraud  one  ." 

(307)  Fifth  count.     AUeritig,  ^c. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  City  and  County  of  New  York,  iu 

the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on,  &c., 

with  force  and  arms,  at  the  City  of  New  York,  in  the  circuit 
and  district  aforesaid,  and  within  the  jurisdiction  of  this  court, 
feloniously  did  falsely  alter  a  certain  official  document  granted 
by  a  collector  of  the  customs  by  virtue  of  his  office,  to  wit,  a  cer- 
tain official  document  granted  by  the  collector  of  the  customs 
for  the  Port  and  District  of  the  City  of  New  York  {insert  here 
averment  in  brackets,  as  before),  which  said  falsely  altered  official 
308 


FORGERY,    COINING,    UTTERING,    ETC.  (308) 

document  is  in  the  words  following,  that  is  to  say  [here  repeat 
the  document  as  altered^  word  for  loord),  with  intent  to  defraud 
the  United  States  of  America,  against,  &c.,  and  against,  &c. 
[Conclude  as  in  book  1,  chapter  3.) 

Sixth  count. 

{Same  as  fifth  county  substituting) :  "  with  intent  to  defraud  one 
,"  /or  "  with  intent  to  defraud  the  United  States  of  Amer- 
ica." 

Seventh  count. 

{Same  as  sixth  count,  substituting-):  "with  intent  to  defraud 
some  person  or  persons  to  the  jurors  aforesaid  as  yet  unknown," 
for  "  with  intent  to  defraud  one  ." 

(308)  Eighth  count.    Altering^  ^c,  averring  specially  the  alterations. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  City  and  County  of  New  York,  in 

the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on,  &c., 

having  in  his  possession  a  certain  official  document  granted  by 
a  collector  of  the  customs  by  virtue  of  his  office  {insert  averment 
in  brackets  in  first  count),  to  wit,  an  official  document  granted  by 
the  collector  of  the  customs  for  the  Port  and  District  of  the  City 
of  New  York,  which  said  official  document,  granted  as  aforesaid, 
was,  when  so  granted,  in  the  words  and  figures  following,  that  is 
to  say  {here  insert  complete  copy  of  original  document,  before  any 
alterations  ivere  made  in  it),  he  the  said  then  and  there,  that 

is  to  say,  on,  &c.,  with  force  and  arms,  at,  &c.,  and  within  the 
jurisdiction  of  this  court,  feloniously  did  falsely  alter  the  said  of- 
ficial document,  by  then   and  there  falsely  altering  (a)  the  figure 
before  written,  in  the  number  in  the  said  official  docu- 

ment, and  by  falsely  altering  the  figure  before  written  in 

in  the  said  official  document,  and  by  then  and  there  falsely 
making,  forging,  and  counterfeiting  upon  the  said  official  docu- 
ment, in  the  place  of  the  said  figure  before  written  in  the 
said  number  in  the  said  official  document,  the  figure  and 
by  then  and  there  falsely  altering  in  the  place  of  the  said  figure 
in             before  written  in  said             in  the  said  official 

(a)  The  nature  of  the  alteration  must  be  stated.  Mount  v.  Com.,  1  Duvall 
(Ky.),  90. 

309 


(310)  OFFENCES  AGAINST  PROPERTY. 

document  the  figure  by  reason  and  by  means  of  which 

said  false  alteration  of  the  said  figure  and  of  the  said  figure 

and  of  falsely  making,  forging,  and  counterfeiting  upon 
the  place  of  the  said  figure  the  figure  and  upon  the 

place  of  the  said  figure  the  figure  the  said  number 

before  written  in  the  said  official  document  did  become,  import, 
and  signify  and  the  said  before  written  in  the  said 

official  document,  did  become,  import,  and  signify  {or  other- 

wise, according  to  the  peculiarities  of  the  document^  which  said 
falsely  altered  official  document  is  in  the  words  and  figures  fol- 
lowing, that  is  to  say  {here  insert  the  document  as  altered),  with 
intent  to  defraud  one  against,  &c.,  and  against,  &c.     ( Con- 

clude as  in  book  1,  chapter  3,) 

(309)  Ninth  count.     Same  in  another  shape. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  late  of  the  City  and  County  of  New  York,  in 

the  circuit  and  district  aforesaid,  ^  heretofore,  to  wit,  on,  &c., 
having  in  his  possession  a  certain  official  document  granted  by 
a  collector  of  the  customs  by  virtue  of  his  office,  to  wit,  an  offi- 
cial document  granted  by  the  collector  of  the  cus^toms  for  the 
Port  and  District  of  the  City  of  New  York  {insert  here  averment 
in  brackets  in  first  count),  which  said  official  document,  granted 
as  aforesaid,  was,  when  so  granted,  in  the  words  and  figures  fol- 
lowing, that  is  to  say  {insert  document  as  in  eighth  count),  he  the 
said  then  and  there,  that  is  to  say,  on,  &c.,  aforesaid,  with 

force  and  arms,  at  the  City  of  New  York,  in  the  circuit  and  dis- 
trict aforesaid,  and  within  the  jurisdiction  of  this  court,  feloni- 
ously did  falsely  alter  the  said  official  document,  by  then  and 
there  falsely  altering,  &c.  {as  in  eighth  count  specified),  which  said 
falsely  altered  official  document  is  in  the  words  and  figures  fol- 
lowing, that  is  to  say  {here  insert  copy  of  document  as  altered), 
with  intent  to  defraud  some  person  or  persons  to  the  jurors  afore- 
said unknown,  against,  &c.,  and  against,  &c.  {Conclude  as  in 
book  1,  chapter  3.) 

(310.)   Tenth  count.     Uttering  certificate  as  forged. 

And  the  jurors  aforesaid,  on   their  oath  aforesaid,  do  further 
present,  that  late  of  the  City  and  County  of  New  York,  in 

310 


FORGERY,    COINING,   UTTERING,   ETC.  (311) 

the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on,  &c. 

with  force  and  arms,  at  the  City  of  New  Yoric,  in  the  circuit  and 
district  aforesaid,  and  within  the  jurisdiction  of  this  court,  feloni- 
ously did  pass,  utter,  and  publish  a  certain  false,  forged,  and  coun- 
terfeited official  document,  purporting  to  be  granted  by  a  collector 
of  the  customs  by  virtue  of  his  office,  to  wit,  an  official  document, 
purporting  to  be  granted  by  the  collector  of  the  customs  for  the 
Port  and  District  of  the  City  of  New  York  {insert  here  averment 
in  brackets  injirst  count),  by  virtue  of  his  office,  which  said  falsely 
altered  official  document  is  as  follows,  that  to  is  say  {here  insert 
copy  of  document  as  altered),  with  intent  to  defraud  the  United 
States,  he  the  said  at  the  time  of  his  so  passing,  uttering,  and 

publishing  the  said  last  mentioned  falsely  altered  official  docu- 
ment, then  and  there,  to  wit,  on,  &c.,  at  the  said  City  of  New 
York,  in  the  circuit  and  district  aforesaid,  and  within  the  jurisdic- 
tion of  this  court,  well  knowing  such  last  mentioned  official  docu- 
ment to  be  falsely  altered  as  aforesaid,  against,  &c.,  and  against, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

Eleventh  count. 

{Same  as  tenth  count,  substituting) :  "  with  intent  to  defraud  one 
,"/or  "  with  intent  to  defraud  the  United  Stales." 

Twelfth  count. 
{Same  as  eleventh  count,  substituting)  :  "with  intent  to  defraud 
some  person  or  persons  to  the  jurors  aforesaid  as  yet  unknown," 
for  "  with  intent  to  defraud  one  ." 

(311)  Thirteenth  count.      Uttering  certificate  as  altered. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  City  and  County  of  New  York,  in 

the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on,  &c., 

with  force  and  arms,  at  the  City  of  New  York,  in  the  circuit  and 
district  aforesaid,  and  within  the  jurisdiction  of  this  court,  felo- 
niously did  attempt  to  pass,  utter,  and  publish  a  certain  falsely 
altered  official  document,  purporting  to  be  granted  by  a  collector 
of  the  customs  by  virtue  of  his  office,  to  wit,  purporting  to  be 
an  official  document  granted  by  the  collector  of  the  customs  for 
the  Port  and  District  of  the  City  of  New  York  {insert  here  aver- 

311 


1 


(312)  OFFENCES  AGAINST  PROPERTY. 

ment  in  brackets  in  first  count),  which  said  falsely  altered  official 
document  is  as  follows,  that  is  to  say  {here  insert  a  copy  of  the 
documejit  as  altered),  with  intent  to  defraud  the  United  States  of 
America,  he  the  said  at  the  said  time  of  his  so  passing, 

uttering,  and  publishing  the  said  last  mentioned  falsely  altered 
official  document,  then  and  there,  to  wit,  on,  &c.,  at  the  City  of 
New  York,  in  the  circuit  and  di&trict  aforesaid,  and  within  the 
jurisdiction  of  this  court,  well  knowing  ^ch  last  mentioned  offi- 
cial document  to  be  falsely  altered,  against,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chapter  3.) 

Fourteenth  count. 

{Same  as  thirteenth  count,  substituting') :  "with  intent  to  de- 
fraud one  ,•'  for  "  with  intent  to  defraud  the  United  States 
of  America." 

Fifteenth  count 

{Same  as  fourteenth  count,  substituting') :  "with  intent  to  de- 
fraud some  person  or  persons  to  the  jurors  aforesaid  as  yet  un- 
known," for  "  with  intent  to  defraud  one  ." 


(312)  Forging  a  treasury  note. 

Southern  District  of  New  York,  ss.  The  jurors  of  the  United 
States  of  America,  within  and  for  the  circuit  and  district  afore- 
said, on  their  oath  present,  that  late  of  the  City  and  County 
]  of  New  York,  in  the  circuit  and  district  aforesaid,  hereto- 
fore, to  wit,  on,  &c.,  with  force  and  arms,  at  the  City  of  New 
York,  in  the  circuit  and  district  aforesaid,  and  within  the  jurisdic- 
tion of  this  court,  feloniously  did  falsely  make,  forge,  and  coun- 
terfeit a  certain  treasury  note,  which  said  false,  forged,  and  coun- 
terfeited treasury  note  is  as  follows,  that  is  to  say  {here  insert  a 
perfect  copy  of  the  note  as  counterfeited),  on  which  said  note  was 
indorsed  "  ,"  with  intent  to  defraud  the  United  States  of 
America,  against,  &c.,  and  against,  &c.     ( Conclude  as  in  book 

1,  chapter  3.) 

Second  count, 

{Same  as  first  count,  substituting):  "with  intent  to  defraud  one 
,"  for   "with  intent   to    defraud    the   United    States   of 
America." 

312 


FORGERY,    COINING,    UTTERING,    ETC.  (314) 

Tliird  count. 
{Same  as  second  count,  substituting') '.  "with  intent  to  defraud 
some  person  or   persons  to  the  jurors  aforesaid  unknown,"  for 
"with  intent  to  defraud  one  ." 

(313)  Fourth  count.     Causing  and  procuring^  ^c. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  City  and  County  of  New  York,  in 

the  circuit  and  district  aforesaid  [state  occupation)^  heretofore,  to 
wit,  on,  &c.,  with  force  and  arms,  at  the  City  of  New  York,  in 
the  circuit  and  district  aforesaid,  and  within  the  jurisdiction  of 
this  court,  feloniously  did  falsely  make,  forge,  and  counterfeit, 
and  cause  and  procure  to  be  falsely  made,  forged,  and  counter- 
feited, and  willingly  aid  and  assist  in  falsely  making,  forging, 
and  counterfeiting,  a  certain  instrument,  for  the  payment  of 
money,  called  a  treasury  note,  which  said  last  mentioned  false, 
forged,  and  counterfeited  instrument,  for  the  payment  of  money, 
called  a  treasury  note,  is  as  follows  {insert  copy  of  note  as  in  pre- 
ceding counts)^  on  which  said  note  was  then  and  there  indorsed 
"  ,"  with  intent  to  defraud  the  United  States  of  America, 

against,  &c.,  and  against,  &c.  {Conclude  as  in  book  1,  chap- 
ter 3.) 

(314)  Fifth  count.     Altering^  cj-c. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  City  and  County  of  New  York, 

in  the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on, 

&c.,  having  in  his  possession  a  certain  treasury  note,  in  the 
words,  letters,  and  figures  following,  that  is  to  say  {insert  copy  of 
note  as  in  preceding-  counts),  which  said  note  was  indorsed 
"  ,"  he  the  said  then  and  there,  that  is  to  say,  on,  &c., 

with  force  and  arms,  at  the  City  of  New  York,  in  the  circuit  and 
district  aforesaid,  and  within  the  jurisdiction  of  this  court,  felo- 
niously did  alter,  forge,  and  counterfeit  the  said  treasury  note,  by 
then  and  there  falsely  obliterating  and  defacing  the  figures 
(or  o^Aeriytse),  before  written  in  in  the  said  treasury  note, 

and  by  then  and  there  falsely  making,  forging,  and  counterfeit- 
ing upon  the  said  treasury  note,  in  the  place  of  the  said 
before  written  in  in  the  said  treasury  note,  the  by 

31E 


(316)  OFFENCES  AGAINST  PROPERTY. 

reason  and  by  means  of  which  said  obliterating  and  defacing  of 
the  said  in  the  said  treasury  note,  and  of  falsely  making, 

forging,  and  counterfeiting  upon  the  place  of  the  said  in 

said  treasury  note,  the  the  said  before  written  in 

in   said  treasury  note,  did   become,  import,  and  signify 
which   said  altered,  forged,  and  counterfeited  treasury  note  is  as 
follows,  that  is  to  say  [here  insert  a  complete  copy  of  the  note,  as 
in  preceding-  counts),  on  which  said  note  was  indorsed  "  ," 

with  intent  to  defraud  the  United  States  of  America,  against, 
&c.,  and  against,  &c.     {Conclude  as  in  book  1,  chapter  3.) 

(315)  Sixth  count.     Passing  note,  ^c. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  City  and  County  of  New  York, 

in  the  circuit  and'district  aforesaid,  heretofore,  to  wit,  on, 

&c.,  with  force  and  arms,  at  the  City  of  New  York,  in  the  circuit 
and  district  aforesaid,  and  within  the  jurisdiction  of  this  court, 
feloniously  did  pass,  utter,  and  publish  a  certain  false,  forged, 
and  counterfeited  treasury  note,  which  said  false,  forged,  and 
counterfeited  treasury  note  is  as  follows,  that  is  to  say  [here  in- 
sert copy  of  treasury  note  as  in  preceding  counts),  on  which  said 
note  was  indorsed  "  ,"  with  intent  to  defraud  the  United 

States  of  America,  he  the  said  at  the  time  of  his  so  pass- 

ing, uttering,  and  publishing  the  said  last  mentioned  false,  forged, 
and  counterfeited  treasury  note,  then  and  there,  to  wir,  on,  &c., 
at  the  said  City  of  New  York,  in  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  well  knowing  such 
last  mentioned  treasury  note  to  be  false,  forged,  and  counter- 
feited, against,  &c.,  and  against,  &c.  (Conclude  as  in  book  1, 
chapter  3.) 

Seventh  count. 

{Same  as  sixth  count,  substituting):  "with  intent  to  defraud 
one  ,"  for  "  with   intent  to  defraud  the  United  States  of 

America." 

(316)  Eighth  count.     Same  as  sixth,  in  another  shape. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  City  and  County  of  New  York, 

in  the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on, 

314 


FORGERY,    COINING,    UTTERING,    ETC.  (317) 

&c.,  with  force  and  arms,  at  the  City  of  New  York,  in  the  circuit 
and  district  aforesaid,  and  within  the  jurisdiction  of  this  court, 
feloniously  did  pass,  utter,  and  publish  a  certain  false,  forged, 
and  counterfeited  treasury  note,  of  which  the  purport  is  as  fol- 
lows, that  is  to  say  [here  insert  a  correct  and  complete  copy  of  the 
treasury  note  as  counterfeited),  which  said  note  was  then  and 
there  indorsed,  "  ,"  with  intent  to  defraud  some  person  or 

persons  to  the  jurors  aforesaid  as  yet  unknown,  he  the  said 
at  the  time  of  his  so  passing,  uttering,  and  publishing  the  said 
last  mentioned  false,  forged,  and  counterfeited  treasury  nole,  then 
and  there,  to  wit,  on,  &c.,  at  the  said  City  of  New  York,  in  the 
circuit  and  district  aforesaid,  and  within  the  jurisdiction  of  this 
court,  well  knowing  such  last  mentioned  treasury  note  to  be 
false,  forged,  and  counterfeited,  against,  &c.,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

Last  count. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  the  Southern  District  of  New  York  in  the  Second 
Circuit,  is  the  circuit  and  district  in  which  the  said  was  first 

apprehended  for  the  said  ofFence.(w^) 

(317)  Feloniously  altering  a  hank  note.(ri) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  having  in  his  possession  a 
bank  note,  whose  tenor  follows,  that  is  to  say  {set  out  the  note), 
feloniously  did  alter  the  said  bank  note  by  then  and  there(w^) 
falsely  obliterating  and  defacing  the  letters  een  before  printed  in 
the  word  fifteen  in  the  said  bank  note,  and  also  the  letters  een 
before  printed  in  the  word  fifteen,  in  white  letters,  on  a  black 
ground  underneath  the  said  bank  note,  and  by  then  and  there 
falsely  making,  forging,  and  counterfeiting  upon  the  said  bank 
note,  in  the  place  of  the  first  mentioned  letters  een  before  printed 
in  the  word  ffteen  in  the  said  bank  note,  the  letter  y ;  and  also 
by  then  and  there  falsely  making,  forging,  and  counterfeiting 
upon  the  said  bank  note,  in  the  place  of  the  said  letters  een,  be- 
fore printed  in  the  wovd  fifteen,  in  white  letters,  on  a  black  ground 

(ml)   See  ante,  3-16,  181,  237-239. 

(/I)   Stark.  C.  P.  458. 

(ni)  See  Mount  v.  Com.,  1  Duvall,  90. 

315 


(318)  OFFENCES  AGAINST  PROPERTY. 

underneath  the  said  bank  note,  another  letter  y^  by  reason  and 
means  of  which  said  obliterating  and  defacing  the  letters  eew, 
before  printed  in  the  said  word  fifteen  in  the  said  bank  note,  and 
also  the  letters  een^  being  before  printed  in  the  said  word  fifteen^ 
in  white  letters,  on  a  black  ground  underneath  the  said  bank 
note,  and  of  falsely  making,  forging,  and  counterfeiting  upon  the 
place  of  the  said  letters  een^  before  printed  in  the  word  fifteen^  in 
and  underneath  the  said  bank  note  the  letter  ?/;  the  letters  j^i5, 
so  remaining  of  the  said  word  fifteen^  before  printed  in  the  said 
bank  note,  with  the  said  first  mentioned  letter  y.  so  falsely 
made,  forged,  and  counterfeited  as  aforesaid,  did  become,  import, 
and  signify  fifty ;  and  the  letters  fift,  so  remaining  of  the  said 
fifteen  before  printed  in  white  letters  on  a  black  ground  under- 
neath the  said  last  mentioned  bank  note,  with  the  said  other  y^ 
so  falsely  made,  forged,  and  counterfeited  as  aforesaid,  did  be- 
come, import,  and  signify  fifty,  which  said  altered  bank  note  is 
in  the  words,  letters,  and  figures  following,  that  is  to  say  [set  out 
the  note  as  altered),  with  intent  to  defraud,  &c.(o) 

(318)  Having  in  possession  forged  bank  notes  without  lawful  excuse, 
knowing  the  same  to  be  forged.(o^^ 

The  defendant  feloniously,  knowingly,  and  wittingly,  and 
without  lawful  excuse,  had  in  his  possession  and  custody  divers 
forged  and  counterfeited  bank  notes,  that  is  to  say,  one  forged 
and  counterfeited  bank  note,  the  tenor  of  which  said  forged  and 
counterfeited  bank  note  is  as  follows,  that  is  to  say  [here  the  note 
is  set  out),  and  one  other  forged  and  counterfeited  bank  note,  the 
tenor  of  which  said  last  mentioned  forged  and  counterfeited  bank 
note  is  as  follows,  that  is  to  say  [here  the  other  note  is  set  out), 
he  the  said  A.  B.  then  and  there,  to  wit,  on,  &c.,  at,  &c.,  well 
knowing  the  same  notes  to  be  forged  and  counterfeited,  against, 
&c.,  and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(o)  Allege  in  one  count  an  intention  to  defraud  the  governor  and  company  of 
the  Bank  of  England;  in  another,  an  intention  to  defraud  the  person  to  whom 
it  is  paid,  &c. ;  add  other  count  alleging  the  forgery  of  the  bank  note  as  altered, 
and  for  altering  with  intent  to  defraud,  &c.     See  forms  ante,  302,  303. 

(oi)   Stark.  C.  P.  454. 

316 


FORGERY,    COINING,    UTTERING,    ETC.  (319) 

Second  count. 
Feloniously,  knowingly,  wittingly,  and  without  lawful  ex- 
cuse, had  in  his  possession  and  custody  a  certain  other  forged 
and  counterfeited  bank  note,  the  tenor  of  which  said  last  men- 
tioned forged  and  counterfeited  bank  note  is  as  follovveth,  that  is 
to  say  [the  first  note  in  the  preceding  count  is  here  set  ovt  again), 
he  the  said  A.  B.,  then  and  there,  to  wit,  on,  &c.,  at,  &c.,  well 
knowing  the  same  last  mentioned  note  to  be  forged  and  counter- 
feited, against,  &c.,  and  against,  &c.  ( Conclude  as  in  book  1,  chap- 
ter 3.) 

(319)  TJttering  and  passing  a  counterfeit  hank  hill,  under  §  4,  ch.  96 
of  Revised  Statutes  of  Verrrkont.(^s') 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  wittingly,  deceitfully,  and  un 
lawfully  did  utter,  pass,  and  give  in  payment  to  one  E.  W.  F.,  of 

(s)  State  V.  Wilkias,  17  Verm.  151.  On  this  indictment,  on  a  demurrer  in 
the  County  Court,  there  was  a  judgment  for  the  State,  and  in  this  shape  the  case 
went  up  to  the  Supreme  Court. 

"The  demurrant  insists  (said  Burnet,  J.,  in  delivering  the  opinion  in  that 
case)  that  the  indictment  is  bad  for  sundry  reasons.  It  is  said  that  there  is  no 
allegation  in  it  of  the  existence  of  the  bank.  If  this  was  so,  the  objection  would 
have  been  well  taken.  The  allegation  is,  that  the  respondent  did  pass,  &c.,  one 
certain  false,  forged,  and  counterfeit  hank  note,  which  said  note  was  made  in  imi- 
talion  of,  and  did  purport  to  be,  a  hank  note,  issued  by  the  President,  Directors, 
and  Company  of  the  Bank  of  Cumberlaml,  by  and  under  the  authority  of  the 
Legislature  of  the  State  of  Maine,  one  of  tjie  United  States  of  America.  The 
statute  of  1818,  Slade's  ed.  261,  provides,  that  if  any  person  shall  counterfeit. 
&c.,  any  bdl  or  note,  issued  by  the  President,  Directors,  and  Company  of  the 
Bank  of  the  United  States,  or  by  the  directors  of  any  other  bank,  by  or  under 
the  legislature  of  any  of  the  United  States  of  America,  he  shall,  on  conviction, 
be  confined,  &c.  In  the  Rev.  Stat.  p.  434,  the  form  of  the  expression  is  some- 
what changed,  and  prohibits  the  counterfeiting  any  hank  hill  or  proinissory  note, 
issued  by  any  banking  company,  incorporated  by  the  Congress  of  the  United 
States,  or  by  the  legislature  of  any  state  or  territory  of  the  United  States.  No 
doubt,  under  the  Revised  Statutes,  the  bank  must  be  an  incorporated  institu- 
tion, and  it  must,  in  substance,  be  so  alleged  in  the  indictment.  So,  I  conceive, 
that,  under  the  statute  of  1818,  the  bill  must  have  been  counterfeited  upon  an 
incorporated  institution,  and  that  the  Revised  Statutes  were  not  designed  to  in- 
troduce any  new  rule.  The  expressions,  a  hank  note,  or  hill,  issued  hy  and  under 
the  authority  of  the  legislature  of  one  of  the  United  States  of  America,  imply,  by 
necessary  implication,  that  it  was  issued  bv  an  incorporated  institution,  and  con- 

317 


(319)  OFFENCES   AGAINST    PROPERTY. 

Mendon,  in  the  State  of  Vermont,  one  certain  false,  forged,  and 
counterfeited  bank  note,  which  said  note  was  made  in  imitation 
sequently  such  an  averment  in  an  indictment  must  be  held  sufficient.  This 
indictment  is  conformable  to  the  precedent  furnished  by  Judge  Aikens,  in  hia 
book  of  forms,  as  applicable  to  the  statute  of  1818,  and  which,  I  believe,  was  in- 
troduced into  general  use.  If  the  Revised  Statutes  introduced,  in  this  particular, 
no  new  rule  of  law,  then  an  indictment  under  the  old  statute  would  be  good 
under  the  Revised  Statutes. 

"  It  is  said,  that,  as  the  indictment  charges  the  offence  to  consist  in  uttering 
and  o-iving  in  payment  a  certain  counterfeit  bank  note,  and  as  the  statute  creating 
the  offence  makes  it  to  consist  in  uttering  and  giving  in  payment  any  counter- 
feit hank  hill  or  promissory  note,  the  offence  in  the  statute  is  not  well  described 
in  the  iinlictment.  The  words  of  the  statute,  in  the  description  of  the  subject 
matter  of  the  offence,  must  be  substantially  followed,  it  is  true,  and  the  offence 
be  brought  within  all  the  material  words  of  it.  We  think  that  the  words  hank 
hill  or  promissory  note,  as  used  in  the  statute,  are  synonymous.  The  words  used 
in  the  indictment,  hank  note,  are  also  synonymous  with  bank  hill.  Bank  note, 
bank  bill,  and  promissory  note,  issued  by  the  directors  of  a  bank  incorporated 
by  and  under  the  legislature  of  this  State,  mean  the  same  thing.  The  expres- 
sion, bank  bill  or  promissory  note,  in  the  statute,  is  an  evident  tautology  ;  and  had 
the  term,  or  hank  note,  been  also  added,  it  would,  none  the  less,  have  been  a 
tautology.  See  Brown  v.  Com.,  8  Mass.  59,  and  also  Com.  v.  Carey,  2  Pick.  47. 
"  It  is  further  objected  to  this  indictment,  that  it  is  not  alleged  that  the  bill 
was  passed  as  a  true  bill.  In  an  indictment  upon  a  penal  statute  the  prosecutor 
must  set  forth  every  fact  that  is  necessary  to  bring  the  case  within  the  statute. 
The  indictment  in  this  case  has  four  counts ;  the  1st  and  3d  are  for  uttering,  pass- 
ing, and  giving  in  payment.  The  2d  and  4th  are  for  having  in  possession  coun- 
terfeit bills  with  an  intention  to  utter,  pass,  and  give  in  payment.  The  statute  of 
15  Geo.  II.  provided,  that  if  a  person  should  utter,  or  tender  in  payment,  any 
false  or  counterfeit  money,  knowing  the  same  to  be  false  or  counterfeit,  he  should, 
on  conviction,  be  subject  to  certain  penalties.  In  the  case  of  the  King  v.  Franks, 
2  Leacli  C.  L.  644,  the  indictment  charged  the  respondent,  simply  with  ulteriny 
a  piece  oi  false  and  counterfeit  money;, and  it  was  held  that  the  offence  was 
complete,  even  though  it  was  uttered  as  base  coin.  In  that  case  the  indictment 
did  not  state  the  uttering  to  have  been  in  payment,  as  and  for  a  piece  of  good 
money;  and  if  it  had,  the  evidence  in  the  case  would  have  rebutted  the  charge. 
It  was  considered,  in  that  case,  that,  as  the  statute  was  in  the  disjunctive,  the 
uttering  and  tendering  in  payment  constituted  two  independent  and  distinct  acts. 
So  I  think  our  statute,  providing  against  uttering,  passing,  or  giving  in  payment 
any  false  and  counterfeit  bill,  makes  the  acts  distinct  and  independent,  and  that 
either  the  uttering,  passing,  or  giving  in  payment,  would  constitute  an  oifence 
against  the  statute,  provided  the  respondent  had  a  knowledge  that  the  money 
was  counterfeit. 

"  Whether  if  this  had  been  an  indictment  simply  upon  the  last  clause,  that  is, 
for  giving  in  payment  a  false  and  counterfeit  bank  bill,  it  would  have  been  neces- 
sary to  have  alleged  that  it  was  given  in  payment,  as  and  for  a  true  bill,  it  is  not 

318 


FORGERY,    COINING,    UTTERING,    ETC.  (319) 

of,  aiul  did  then  and  there  purport  to  be,  a  bank  note  for  the  sum 
of  five  dollars,  issued  by  the  President,  Directors,  and  Company 
of  the  Bank  of  Cumberland,  by  and  under  the  authority  of  the 
Legislature  of  the  State  of  Maine,  one  of  the  United  States  of 
America,  made  payable  to  S.  B.,  or  bearer,  on  demand,  numbered 
two  hundred  and  seventy-four,  and  dated  the  first  day  of  Sep- 
tember, in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
thirty-five,  with  the  name  of  S.  E.  C.  thereto  subscribed  as  pres- 
ident of  said  bank,  and  the  name  of  C.  C.  T.  countersigned 
thereon  as  cashier  of  said  bank,  and  was  in  the  words  and  figures 
following,  that  is  to  say  :  — 

«  The  State  No.  974  of  Maine. 

"  The  President,  Directors,  and  Company  of  the  Bank  of  Cum- 
berland, promise  to  pay  Five  Dollars  to  S.  B.,  or  bearer,  on  de- 
mand. 

Portland,  1st  Sept.,  1835. 
«  C.  C.  T.,  Cash'r.  S.  E.  C,  Fres't:' 

He,  the  said  A.  B.,  then  and  there  well  knowing  the  said  note 
to  be  false,  forged,  and  counterfeited  as  aforesaid,  with  intent  to 

now  necessary  to  decide.  In  the  case  State  v.  Randal  (2  Aik.  89),  -we  have  the 
form  of  an  indictment  hke  the  present,  under  the  statute  of  181 8  ;  and  it  was 
held  sudicient.  Neither  in  that  statute,  nor  in  the  Revised  Statutes,  is  it  made 
a  part  of  the  description  of  the  oflence,  that  the  counterfeit  bill  shall  have  been 
uttered,  passed,  or  given  in  payment,  as  and  for  a  true  bill ;  and  it  is  necessary 
lor  us  to  decide  what  would  have  been  necessary,  if  this  had  been  a  part  or  the 
description  of  the  offence.  The  offence  of  disposing  and  putting  away  for"-ed 
bank  notes  was  held  to  be  complete,  though  the  person  to  whom  they  were  dis- 
posed of  was  an  agent  for  the  bank  to  detect  iitterers,  and  applied  to  the  prisoner 
to  purchase  forged  bank  notes,  and  had  them  delivered  to  him  as  forged  notes, 
for  the  purpose  of  disposing  of  them.     R.  &  R.  1 54. 

"  It  is  said,  also,  that  the  indictment  is  bad,  because  there  is  a  repugnancy 
between  purport  and  tenor  of  the  bill,  as  alleged  in  the  indictment.  We  think 
there  is  no  ground  for  this  objection.  The  indictment  set  forth  the  countei'feit 
bills  in  their  words  and  figures,  as  it  was  proper  it  should  do;  and  the  alle- 
gation, that  the  bill,  charged  to  be  forged  in  each  count,  was  made  in  imitation 
of,  and  did  purport  to  be,  a  bank  note,  issued  by  the  Bank  of  Cumberland,  is 
nothing  more  than  an  allegation  that  the  bill  was  a  fiction,  and  it  is  no  attempt 
to  set  forth  the  forged  bill  according  to  its  purport.  It  may  be  true,  that,  where 
the  pleader  first  sets  out  the  bill  according  to  what  he  claims  to  be  the  legal  pur- 
port, and  afterwards  sets  it  out  according  to  its  tenor,  and  there  is  a  repugnancy, 
it  may  be  fatal;  but  that  principle  does  not  apply  to  this  indictment. 
■  "  The  result  to  which  the  court  have  come,  is  that  the  indictment  is  sufficient." 

319 


(322)  OFFENCES  AGAINST  PROPERTY? 

defraud  the  said  E.  W.  F.,  contrary,  &c.  ( Conclude  as  in  book 
1,  chapter  3.) 

(320)  Uttering  forged  order,  under  Ohio  statute. 

That  A.  B.,  on  the  twenty-seventh  day  of  July,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  fifty-three,  in  the 
County  of  Cuyahoga  aforesaid,  feloniously  did  utter  and  publish 
as  true  and  genuine,  one  certain  false  and  forged  order  in  writing, 
for  the  payment  of  money,  which  said  false  and  forged  order  in 
writing  is  of  the  tenor  and  effect  following,  that  is  to  say  :  — 

"  Cleveland,  July  27,  '53. 

"  Mr.  Ransom,  Please  pay  T.  Donley  $11.30,  and  charge  Schr. 
Fletcher.  E.  Goffet." 

with  intent  thereby  then  and  there  to  prejudice,  damage,  and  de- 
fraud one  Chancy  S.  Ransom  ;  he,  the  said  A.  B.,  at  the  time 
when  he  so  uttered  and  published  the  said  false  and  forged  order, 
then  and  there  well  knowing  the  same  to  be  false  and  forged.(a) 

(321)  Passing  forged  order,  under  Ohio  statute. 

That  A.  B.,  on  the  thirty-first  day  of  August,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  fifty-two,  in  the 
County  of  Hamilton  aforesaid,  did  unlawfully  falsely  utter,  pub- 
lish, and  put  off  to  one  M.  N.,  a  certain  false,  forged,  and  coun- 
terfeited order,  as  a  true  and  genuine  order  of  O.  P.,  given  for 
the  payment  of  six  dollars,  which  aforesaid  forged  order  then  and 
there  was  of  the  tenor  and  effect  following,  to  wit, — 

"  August  Slst,  A.  D.  1852. 

"  Mr.  M N ,  Sir,  Please  to  let  the  bearer,  or  order,  have 

six  dollars,  and  oblige  yours,  O P ." 

with  the  intent  then  and  there  to  prejudice,  damage,  and  defraud 
the  said  M.  N.,  he,  the  said  A.  B.,  then  and  there  well  knowing 
the  said  false,  forged,  and  counterfeited  order  to  be  false,  forged, 
and  counterfeited.(5) 

(322)    Uttering  a  forged  note  purporting  to  he  issued  by  a  hank  in 
another  State,  under  the  Vermont  statute. 

That  J.  S.,  of,  &c.,  in  said  County  of  Windsor,  on,  &c.,  with 
force  and  arms,  at,  &c.,  wittingly,  falsely,  deceitfully,  and  unlaw- 
(a)  Warren's  C.  L.  24D.  (6)  Warren's  C.  L.  249. 

320 


FORGERY,    COINING,    UTTERING,    ETC.  (324) 

fully  did  utter,  pass,  and  give  in  payment  to  one  A.  L.,  of,  &c., 
one  certain  false,  forged,  and  counterfeit  bank  note,  which  said 
note  was  made  in  imitation  of,  and  did  then  and  there  purport 
to  be  a  bank  note  for  the  sum  of  two  dollars,  issued  by  the  Pres- 
ident, Directors,  and  Company  of  the  Suffolk  Bank,  a  banking 
company  incorporated  by  and  existing  under  the  authority  of  the 
Legislature  of  the  State  of  Massachusetts,  one  of  the  United 
States,  made  payable  to  E.  C,  or  bearer,  on  demand,  numbered 
one  thousand  four  hundred  and  ninety-one,  and  dated  Boston, 
May  third,  one  thousand  eight  hundred  and  forty-three,  with  the 
name  of  H.  B.  S.  thereto  subscribed  as  president  of  said  bank, 
and  the  name  of  J.  V.  B.  countersigned  thereon  as  cashier  of 
said  bank,  and  was  in  the  words  and  figures  following,  that  is  to 
say  {here  set  forth  the  note),  he  the  said  J.  S.  well  knowing,  then 
and  there,  the  said  note  to  be  false,  forged,  and  counterfeited  as 
aforesaid,  with  intent  to  defraud  the  said  A.  L.,  contrary,  &c., 
and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(323)  Having  counterfeit  bank  note  in  possession,  under  Ohio  statute. 

That  A.  B.  and  C.  D.,  on  the  2d  day  of  February,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  fifty-five,  in  the  County 
of  Cuyahoga  aforesaid,  were  detected  with  having  unlawfully 
in  their  possession  two  hundred  forged  and  counterfeited  bank 
notes,  purporting  to  be  issued  by  the  Mechanics'  Bank  in  Rhode 
Island,  for  the  payment  of  five  dollars  each/which  said  forged 
and  counterfeited  bank  notes  are  as  follows,  that  is  to  say:  — 

"  Rhode  Island. 
^     5  THE  MECHANICS'  BANK 

!^  Will  pay  Five  Dollars  on  demand  to  the  bearer. 

^      M.  M.  Newport,  October  20,  1854.  ^ 

C.  D.  Hammet,  Cash.  Isaac  Gould,  Pres." 

for  the  purpose  and  with  the  intent  to  sell,  barter,  and  dispose 
of  the  said  forged  and  counterfeit  bank  notes. (c) 

(324)  Saving  in  possession  counterfeit  plates,  under  Ohio  statute. 

That  A.  B.  and  C.  D.,  on  the  tenth  day  of  September,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  forty-four,  at 
the  County  of  Hamilton  aforesaid,  did  unlawfully  and  knowingly 
(c)  Warren's  C.  L.  258. 

VOL.  I. -21  321 


(325)  '  OFFENCES  AGAINST  PROPERTY. 

have  in  their  possession,  and  then  and  there  secretly  did  kee| 
a  certain  plate,  then  and  there  designed  and  engraved  for  the 
purpose  of  striking  and  printing  false  and  counterfeited  bank 
notes,  to  wit,  for  the  purpose  then  and  there  of  striking  and 
printing  false  and  counterfeited  bank  notes  in  the  likeness  and 
similitude  of  the  true  and  genuine  bank  notes  of  the  Bank  of 
Tennessee,  of  the  denomination  of  twenty  dollars,  and  which 
said  plate  then  and  there  was  etched  and  engraved,  amongst 
other  things,  with  the  words  and  figures  following,  to  wit:  — 

"  No. No. ,  B.  B. Capital  five  millions. 

Nashville, ,  18 — .     The  Bank  of  Tennessee  prom- 
ises to  pay  Twenty  Dollars  to  the  Bearer,  on  demand. 

" ,  Cash'r.  ,  Pres't." 

which  said  plate  they,  the  said  A.  B.  and  the  said  C.  D.,  then 
and  there  well  knew  to  be  designed  and  engraved  then  and  there 
for  the  purpose  of  striking  and  printing  false  and  counterfeited 
bank  notes  as  aforesaid,  and  which  said  plate  they,  the  said  A. 
B.  and  C  D.,  then  and  there  so  had  in  their  possession,  and 
then  and  there  secretly  kept  as  aforesaid,  for  the  purpose  then 
and  there  of  striking  and  printing  false  and  counterfeited  bank 
notes.(t?) 

(325)  Secretly  keeping  counterfeiting  instruments^  under  Ohio  statute. 

That  A.  B.,  C.  D.,  E.  R,  G.  H.,  I.  J.,  and  K.  L.,  on  the  twenty- 
seventh  day  of  April,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  thirty-eight,  at  the  said  County  of  Huron,  did 
knowingly  and  wilfully  have  in  their  possession,  and  secretly 
keep  one  bogus,  one  press,  one  pressing  machine,  one  stamping 
machine,  one  set  of  dies,  one  pair  of  dies,  one  die,  other  two 
dies,  two  milling  machines,  two  edging  machines,  two  sets  of 
milling  bars,  two  pairs  of  milling  bars,  two  moulds,  two  cruci- 
bles, two  files,  two  rasps,  ten  iron  bands,  ten  iron  bolts,  five 
steel  punches,  and  five  steel  pins,  the  same  then  and  there  being 
instruments  for  the  purpose  of  counterfeiting  certain  coins  of 
silver,  called  Mexican  Dollars,  the  said  coins  of  silver  then  being 
coins  of  silver  currently  passing  in  the  said  State  of  Ohio,  as  and 
for  money.(e) 

(d)  Warren's  C.  L.  2G6.    This  was  sustained  in  State  v.  Sassee,  13  Ohio,  453. 

(e)  Warren's  C.  I..  263. 

322 


FORGERY,   COINING,   UTTERING,    ETC.  (327) 

(326)  Having  in  possession  counterfeit  bank  notes^  under  Ohio  statute. 
That  A.  B.  and  C.  D.,  on  the  tenth  day  of  September,  in  the 

year  of  our  Lord  eighteen  hundred  and  forty-four,  at  the  County 
of  Hamilton  aforesaid,  did  unlawfully  and  falsely  have  in  their 
possession,  and  then  and  there  were  detected  with  so  having  in 
their  possession,  divers,  to  wit,  five  hundred,  false,  forged,  coun- 
terfeited, and  spurious  bank  notes,  then  and  there  made  as  and 
for  true  and  genuine  bank  notes  of  the  Merchants'  and  Me- 
chanics' Bank  of  Wheeling,  of  the  denomination  of  five  dollars, 
one  of  which  said  false,  forged,  counterfeited,  and  spurious  bank 
notes  then  and  there  was  of  tenor  and  effect  following,  to  wit :  — 
"  No.  402.  B. 

The  Merchants'  and  Mechanics'  Bank  of  Wheeling 
will  pay  Five  Dollars  on  Demand  to  J.  Gill,  or  bearer, 
at  its  Banking  House,  Wheeling,  Va.     June  9th,  1843. 
"  S.  Brady,  Cash'r.  E.  C.  Woods,  Pres't:' 

which  said  false,  forged,  counterfeited,  and  spurious  bank  notes, 
they,  the  said  A.  B.  and  C.  D.,  then  and  there  well  knew  to  be 
false,  forged,  counterfeited,  and  spurious  ;  and  which  said  false, 
forged,  counterfeited,  and  spurious  bank  notes,  they,  the  said  A. 
B.  and  C.  D.,  then  and  there  had  in  their  possession  for  the  pur- 
pose then  and  there  of  selling,  bartering,  and  disposing  of  the 
same.(/)     ( Conclude  as  in  book  1,  chapter  3.) 

(327)  Having  in  possession  forged  note  of  United  States  Bank,  un- 

der the  Vermont  statute. (f) 
That  W.  R.,  late  of  Franklin,  in  the  County  of  Franklin  afore- 
said, heretofore,  that  is  to  say,  on,  &c.,  with  force  and  arms,  at 

(/)  Warren's  C.  L.  259.    Sustained  by  S.  C.  in  State  v.  Sassee,  13  Ohio,  453. 

(<)  State  V.  Randal,  2  Aik.  89.  "  In  this  case  it  was  held  that  the  offences  of 
counterfeiting  bills  of  the  Bank  of  the  United  States,  of  passing,  and  of  know- 
ingly having  in  possession  such  counterfeits  with  intent  to  pass  them,  are  cog- 
nizable by  the  courts  of  this  State,  under  the  statute  of  this  State  against  coun- 
terfeiting, notwithstanding  the  Congress  of  the  United  States,  in  virtue  of  the 
eighth  section  of  the  first  article  of  the  Constitution,  have  legislated  on  the  sub- 
ject, and  given  to  the  courts  of  the  United  States  jurisdiction  of  the  same  of- 
fences. 

"  The  jurisdiction  of  the  United  States  Courts  under  the  acts  of  Congress,  and 
of  the  courts  of  this  State  under  the  statute  of  Vermont,  over  those  offences,  are 
concurrent  within  this  State." 

323 


(328)  OFFENCES   AGAINST   PROPERTY. 

Franklin  aforesaid,  in  the  County  of  Franklin  aforesaid,  feloni- 
ously and  unlawfully  did  have  in  his  possession,  with  an  inten- 
tion to  utter,  pass,  and  give  in  payment,  one  certain  false,  forged, 
and  counterfeited  bank  note,  which  said  note  was  made  in  imita- 
tion of,  and  did  then  and  there  purport  to  be,  a  bank  note  for 
the  sum  of  ten  dollars,  issued  by  the  President,  Directors,  and 
Company  of  the  Bank  of  the  United  States,  made  payable  at 
their  office  of  discount  and  deposit  in  Charleston,  to  J.  J.,  presi- 
dent thereof,  or  to  the  bearer,  on  demand,  numbered  three  thou- 
sand and  fourteen,  and  dated  at  Philadelphia  the  twentieth  day 
of  January,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  twenty-three,  with  the  name  of  L.  C.  thereto  subscribed,  as 
president  of  said  bank,  and  the  name  of  T.  W.  countersigned 
thereon  as  cashier  of  said  bank,  and  was  in  the  words  and  figures 
following,  that  is  to  say  {here  the  hill  was  set  forth  verbatim). 
He  the  said  W.  R.  then  and  there  well  knowing  the  said  note  to 
be  false,  forged,  and  counterfeited  as  aforesaid,  contrary,  &c.,  and 
against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(328)  Forgery,  ^c,  in  New  York.     Having  in  possession  a  forged 
note  of  a  corporation,  (u) 

That  A.  B.,  late  of  the  Ward  of  the  City  of  New  York, 

in  the  County  of  New  York  aforesaid,  on,  &c.,  with  force  and 
arms,  at  the  Ward  of  the  City  of  New  York,  in  the  County 

of  New  York  aforesaid,  feloniously   had  in  custody   and 

possession,  and  did  receive  from  some  person  or  persons  to  the 
jurors  aforesaid  unknown,  a  certain   forged  and  counter- 

feited negotiable  promissory  note,  for  the  payment  of  money, 
commonly  called  a  bank  note,  purporting  to  have  been  issued  by 
a  certain  corporation  or  company  called  [setting  out  the  name), 
duly  authorized  for  that  purpose  by  the  laws  of,  &c.,  which  said 
last  mentioned  false,  forged,  &c.,  and  counterfeited  negotiable 
promissory  note  for  the  payment  of  money  is  as  follows,  that  is 
to  say  [setting'  out  the  note),  with  intention  to  utter  and  pass  the 
same  as  true,  and  to  permit,  cause,  and  procure  the  same  to  be 
so  uttered  and  passed,  with  the  intent  to  injure  and  defraud  one 
[setting  out  the  party),  and  divers  other  persons  to  the  jurors 
aforesaid  unknown,  he  the  said  then  and  there  well 

Cm)  This  is  the  ordinary  form  in  use  in  the  City  of  New  York. 

324 


FORGERY,    COINING,    UTTERING,    ETC.  (330) 

knowing  the  said  last  mentioned  false,  forged,  and  coun- 

terfeited promissory  note,  for  the  payment  of  money,  to  be  false, 
forged,  and  counterfeited  as  aforesaid,  against,  &c.,  and 

against,  &c.     [Conclude  as  in  book  1,  chapter  3.) 

(329)  Second  count.     Uttering  the  same. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  A.  B.,  &c.,  afterwards,  to  wit,  on  the  day 
and  year  last  aforesaid,  with  force  and  arms,  at  the  ward,  city, 
and  county  aforesaid,  feloniously  and  falsely  did  utter  and  pub- 
lish as  true,  with  intent  to  injure  and  defraud  the  said  C.  D.,  &c., 
and  divers  other  persons  to  the  jurors  aforesaid  unknown,  a  cer- 
tain other  false,  forged,  and  counterfeited  negotiable  prom- 
issory note  for  the  payment  of  money,  commonly  called  a  bank 
note,  purporting  to  have  been  issued  by  a  certain  corporation  or 
company  called  {giving  name),  duly  authorized  for  that  purpose 
by  the  laws  of  which  said  last  mentioned  false,  forged, 
and  counterfeited  negotiable  promissory  note  for  the  pay- 
ment of  money  is  as  follows,  that  is  to  say  {setting  forth  note  as 
above),  the  said  A.  B.,  at  the  same  time  so  uttered  and 
published  the  said  last  mentioned  false,  forged,  and  coun- 
terfeited negotiable  promissory  note  for  the  payment  of  money 
as  aforesaid,  then  and  there  well  knowing  the  same  to  be  false, 
forged,  and  counterfeited,  against,  &c.j  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(330)  Forging  an  instrument  for  payment  of  money,  under  the  New 

York  statute,  (y^ 

That  A.  B.,  late  of  the  Ward  of  the  City  of  New  York, 

in  the  County  of  New  York  aforesaid,  &c.,  on,  &c,,  with  force 
and  arms,  at  the  Ward,  City,  and  County  of  New  York  aforesaid, 
feloniously  did  falsely  make,  forge,  and  counterfeit,  and  cause 
and  procure  to  be  falsely  made,  forged,  and  counterfeited,  and 
willingly  act  and  assist  in  the  false  making,  forging,  and 

counterfeiting  a  certain  for  payment  of  money  which 

said  false,  forged,  and  counterfeited  for  payment  of  money 

is  as  follows,  that  is  to  say  {setting  forth  the  instrument),  with 
intent  to  injure  and  defraud  {setting  forth  the  persons  to  be  de- 
{v)  This  is  the  oi'dinaiy  form  ia  use  in  the  City  of  New  York. 

325 


(332)  OFFENCES  AGAINST  PROPERTY. 

frauded)^  and  divers  other  persons  to  the  jurors  aforesaid  un- 
known, against,  &c.,  and  against,  &c.  ( Conclude  as  in  book  1, 
chapter  3.) 

(331)  Second  count.     Uttering  the  same. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  furth^ 
present,  that  the  said  A.  B.,  &c.,  afterwards,  to  wit,  on  the  day 
and  year  last  aforesaid,  with  force  and  arms,  at  the  ward,  city, 
and  county  aforesaid,  feloniously  and  falsely  did  utter  and  pub- 
lish as  true,  with  intent  to  injure  and  defraud  the  said  C.  D.,  &c., 
and  divers  other  persons  to  the  jurors  aforesaid  unknown,  a  cer- 
tain false,  forged,  and  counterfeited  for  paynient  of  money, 
which  said  last  mentioned  false,  forged,  and  coun- 
terfeited for  payment  of  money  is  as  follows,  that  is  to 
say  (setting'  forth  instrument  as  above),  the  said  A.  B.,  &c.,  at  the 
said  time  he  so  uttered  and  published  the  said  last  mentioned 
false,  forged,  and  counterfeited  for  payment  of  money 
as  aforesaid,  then  and  there  well  knowing  the  same  to  be  false, 
forged,  and  counterfeited,  against,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chapter  3.) 

(332)  Having  in  possession  forged  notes,  ^c,  with  intent  to  defraud, 
under  the  New  York  statute. (w") 

That,  &c.,  on^  &c.,  at,  &c.,  feloniously  had  in  his  custody  and 
possession,  and  did  receive  from  some  person  or  persons  to  the 
jurors  aforesaid  unknown,  a  certain  false,  forged,  and  counter- 
feited negotiable  promissory  note  for  the  payment  of  money, 
commonly  called  a  bank  note,  purporting  to  have  been  issued  by 
a  certain  corporation  or  company  called  the  Morris  Canal  and 
Banking  Company,  duly  authorized  for  that  purpose  by  the  laws 
of  the  State  of  New  Jersey,  which  said  last  mentioned  false, 
forged,  and  counterfeited  negotiable  promissory  note  for  the  pay- 
ment of  money  is  as  follows  [selling  forth  note  verbatim  et  lit- 
eratim), with  intention  to  utter  and  pass  the  same  to  be  true, 
and  to  permit,  cause,  and  procure  the  same  to  be  so  uttered  and 
passed,  with  the  intent  to  injure  and  defraud  said  Morris  Canal 
and  Banking  Company,  &c. ;  he  the  said  S.  D.  then  and  there 
(w)  People  V.  Davis,  2  Wend.  309. 
826 


FORGERY,    COINING,    UTTERING,    ETC.  (334) 

well  knowing  the  said  note  to  be  false,  forged,  and  counterfeited, 
against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(333)  Forgery  of  a  iiote  of  a  bank  incorporated  in  Pennsylvania^ 
under  the  Pennsylvania  8tatute.(x) 

That  A.  B.,  late  of  said  county,  on,  &c.,  at  the  county  afore- 
said, and  within  the  jurisdiction  of  this  court,  with  force  and 
arms,  feloniously  did  falsely  make,  forge,  and  counterfeit,  and 
cause  and  procure  to  be  falsely  made,  forged,  and  counterfeited, 
a  certain  note  in  imitation  of,  and  purporting  to  be,  a  note  issued 
by  the  order  of  the  president,  directors,  and  company  of  [setting 
out  the  name  of  the  bank),  for  the  sum  of  dollars,  purport- 

ing to  be  signed  by  president,  and  cashier,  payable  to 

or  bearer,  on  demand,  dated  one  thousand  eight  hun- 

dred and  the  said  bank  then  and  there  being  a  bank 

within  this  commonwealth,  incorporated  in  pursuance  of  an  act 
of  the  general  assembly,  which  said  falsely  made,  forged,  and 
counterfeited  note,  partly  written  and  partly  printed,  is  in  the 
words  and  figures  following  [setting  out  the  note),  with  intent  to 
defraud  the  said  bank,  contrary,  &c.,  and  against,  &c.  (  Conclude 
as  in  book  1,  chapter  3.) 

(334)  Second  count.     Passing  same. 

That,  &c.,  A.  B.,  &c.,  on,  &c.,  at,  &c.,  feloniously  did  pass, 
utter,  and  publish,  and  attempt  to  pass,  utter,  and  publish  as  true, 
a  certain  false,  forged,  and  counterfeit  note,  purporting  to  be  a 
note  issued  by  the  said  [setting  forth  the  bank  as  in  first  count), 
for  the  sum  of  dollars,  signed  by  president,  and 

cashier,  payable  to  or  bearer,  on  demand,  and  dated  one 

thousand  eight  hundred  and  the  said  then  and  there,  be- 

ing a  bank  within  this  commonwealth,  incorporated  in  pursuance 
of  an  act  of  the  general  assembly  ;  which  said  false,  forged,  and 
counterfeit  note,  partly  written  and  partly  printed,  is  in  the  words 
and  figures  following,  to  wit  [setting  out  the  note),  the  said  A.  B. 
then  and  there  well  knowing  the  said  note  to  be  as  aforesaid 

(x)  For  forging  the  notes  of  a  foreign  bank,  the  above  form  is  good  at  com- 
mon law,  striking  out  the  word  "feloniously,"  the  averment  of  the  charter  of  the 
bank,  and  charging  the  intent  to  be  to  defraud  the  persons  actually  defrauded, 
or  to  defraud  persons  unknown.     See  for  form  of  same,  ante,  295. 

327 


(385)  OFFENCES  AGAINST  PROPERTY. 

false,  forged,  and  counterfeit,  with  intent  to  defraud  [the  party  to 
whom  the  note  was  passed)^  contrary,  &c.,  and  against,  &c.  ( Con- 
clude as  in  book  1,  chapter  3.) 

(335)  Forgery  of  the  note  of  a  hank  in  another  State,  under  the 
Virginia  statute.^y') 

That  A.  B.,  of  the  County  of  Cabell,  a  certain  false,  forged, 
and  counterfeit  note,  purporting  to  be  a  note  of  the  Bank  of 

(y)  Com.  V.  Murray,  5  Leigh,  720.  In  this  case  the  prisoner  made  a  motion 
in  arrest  of  judgment,  because  the  indictment  did  not  allege  that  the  bank  is 
chartered,  or  that  there  was  any  such  bank  in  existence,  according  to  the  pro- 
visions of  the  first  section  of  the  statute ;  and,  because  the  offence  as  charged 
was  not  embraced  by  the  provisions  of  the  fourth  section,  under  which,  it  was 
stated,  the  prisoner  was  indicted.  The  court  below  overruled  the  motion,  and 
sentenced  the  prisoner  to  imprisonment. 

May,  J.,  delivered  the  opinion  of  the  court.  "  The  writ  of  error  was  asked 
on  the  same  grounds  on  which  the  motion  in  arrest  of  judgment  was  founded, 
and  it  is  now  further  contended  that  the  indictment  cannot  be  sustained  on  the 
fourth  section  of  the  statute,  because  it  does  not  charge  the  offence  to  have  been 
committed,  'to  the  prejudice  of  another's  rights,'  and  also  because  it  is  not  al- 
leged to  have  been  done  '  for  his  own  benefit  or  for  the  benefit  of  another.' 
Whether  the  bank  was  chartered,  nowhere  appears ;  but  it  must  be  presumed 
that  the  prisoner  was  not  prosecuted  under  the  first  section  of  the  statute,  be- 
cause the  minimum  term  of  imprisonment  therein  is  ten  years ;  the  reasons  in 
arrest  of  judgment  state  that  the  prosecution  was  founded  on  the  fourth  section, 
and  the  bank  is  nowhere  alleged  to  have  been  chartered.  We  regard  the  indict- 
ment, therefore,  as  one  on  the  fourth  section,  which  prohibits  the  counterfeiting 
of  various  public  certificates,  warrants,  and  other  writings,  particularly  enumer- 
ated therein ;  and  the  uttering  or  publishing  of  such  counterfeits  as  true.  Among 
them  we  find  any  deed,  bond,  writing,  or  note,  any  letter  of  credit,  or  other  writ- 
ing to  the  prejudice  of  another's  right. 

•'  In  the  latter  part  of  the  same  section  it  is  provided,  that  if  any  person  shall, 
with  the  like  intent  (to  defraud,  ^c),  utter  or  publish  as  true,  or  attempt,  in  any 
manner,  to  use  or  employ  as  true,  for  his  own  benefit  or  for  the  benefit  of  an- 
other, any  false,  forged,  counterfeit,  altered,  or  erased  paper  or  writing,  as  is 
aforesaid,  knowing  the  same  to  be  false,  &c.,  he  shall  be  guilty  of  felony,  and 
there  is  an  exception  of '  the  bank  notes,  bills,  post  notes,  and  checks,'  mentioned 
in  the  three  preceding  sections.  If  the  note  in  question  was  the  note  of  an  un- 
chartered bank,  it  is  not  embraced  by  either  of  those  three  first  sections.  And 
it  has  been  said,  that  the  legislature  did  not  intend  to  prohibit  the  counterfeiting 
of  the  notes  of  such  banks.  At  the  revisal  of  1819,  the  notes  of  every  bank 
chartered  by  the  United  States,  or  either  of  the  States,  were,  for  the  first  time, 
placed  on  the  same  footing,  as  to  this  class  of  offences,  with  the  notes  of  the 
banks  of  this  State.     Previously  there  was  no  express  provision  for  the  offence 

328 


FORGERY,    COINING,    UTTERING,    ETC.  (335) 

Louisville,  for  five  dollars,  feloniously  did  pass  as  a  true  bank 
note  for  five  dollars  to  one  C,  of  the  following  tenor  {setting  forth 
note),  with  intent  to  defraud  the  said  C,  and  with  intent  also  to 
defraud  the  corporation  of  the  President,  Directors,  and  Company 
of  the  Bank  of  Louisville,  he  the  said  A.  B.,  at  the  time  of  pass- 
ing the  said  false,  forged,  and  counterfeit  bank  note,  well  know- 
ing the  same  to  be  false,  forged,  and  counterfeited,  contrary,  &c. 
{Conclude  as  in  hook  1,  chapter  3.) 

{Second  count  in  like  form,  only  charging'  the  passing  of  a  differ- 
ent counterfeit  note  of  the  same  hank  to  C,  ivith  intent  to  defraud  C.) 

{For  indictment  for  causing  false  entry  relating  to  baptism  to  be 
inserted  in  parish  register,  see  10  Cox,  C.  C.  649,  App.  I.) 

of  couiitei-feiting  the  notes  of  any  bank  of  another  State,  whether  chartered  or 
not,  but  there  was  one  in  reLation  to  notes  generally,  similar  to  that  in  the  fourth 
section  of  the  present  statute.  And  this  court  decided  in  Hensley's  case  (2  Va. 
Cases  149),  that  the  passing  of  a  counterfeit  note,  purporting  to  be  of  a  bank  in 
another  State  (without  inquiring  whether  it  was  chartered  or  not),  was  felony, 
because  the  words  of  the  statute  then  in  force  comprehended  all  notes,  and  we 
are  all  of  opinion,  that  the  words  any  notes,  in  the  present  statute,  in  like  man- 
ner, embrace  the  notes  of  unchartered  banks.  Although  the  legislature  designed 
by  another  statute  to  suppress  such  banks  in  this  State,  we  have  no  reason  to 
believe  that  it  intended  to  interfere  with  the  policy  of  other  States,  which  may 
permit  them.  And  certainly,  there  is  nothing  in  either  statute  from  which  we 
can  infer  that  the  legislature  would  tolerate  the  offence  of  forgery  ibr  the  mere 
purpose  of  endeavoring  to  suppress  unchartered  banks.  As  to  the  objection, 
that  the  indictment  does  not  charge  the  act  to  have  been  committed  '  to  the  prej- 
udice of  another's  right,'  we  are  of  opinion,  that  these  words  relate  not  to  the 
different  writings  particularly  mentioned  in  the  previous  part  of  the  section,  the 
counterfeiting  of  most  of  which  had,  long  before,  been  made  felony,  but  only  to 
the  words  immediately  connected  with  them,  '  any  other  writing  to  the  prejudice 
of  another's  right.'  So,  too,  in  the  last  part  of  the  section  the  words,  for  his  own 
benefit,  or  for  the  benefit  of  another,  are  not  properly  connected  with  the  offence 
of  uttering  and  publishing  as  true  any  of  the  forged  writing  and  papers  therein 
stated,  but  only  with  that  of  attempting  to  use  or  employ  them  for  his  own  ben- 
efit, or  for  the  benefit  of  another.  These  terms  were  probably  intended  to  apply 
to  the  various  warrants,  certificates,  and  writings  of  public  ofiicers,  which  a  per- 
son might  attempt  so  to  use  or  employ. 

"  On  the  whole,  then,  we  are  of  opinion  that  the  note  of  an  unchartered  bank 
is  not  embraced  by  the  first  section  of  the  statute,  but  is  clearly  embraced  by  the 
words  any  note  in  the  fourth  section  ;  that  the  words  '  to  the  prejudice  of  an- 
other's right,'  relate  only  to  the  forging  of  other  toritings,  not  particularly  named ; 
and  that  the  words  '  for  his  own  benefit,  or  for  the  benefit  of  another,'  refer,  not 
to  the  actual  uttering  and  publishing  as  true  of  counterfeit  notes,  &c.,  but  to  the 
mere  attempt  to  use  or  employ  them  and  the  other  writings  mentioned." 

329 


(338)  OFFENCES  AGAINST  PROPERTY. 

{For  precedent  for  forging;  certificate  of  character  in  order  to 
obtain  situation^  see  10  Cox,  C.  C.  App.  11.) 

(336)  For  making,  forging,  and  counterfeiting,  ^c,  American  coin, 
under  act  of  Congress.Qy^^ 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  feloniously  did  falsely  make, 
forge,  and    counterfeit  pieces  of   coin,   of  and  other 

mixed  metals  [or  otherwise),  in  the  resemblance  and  similitude  of 

coin,  called  a  which  said  coin,  called  a 

had  before  the  said,  &c.,  of,  &c.,  been  coined  at  the  mint  of  the 
United  States,  with  intent  to  defraud  some  person  or  persons  to 
the  jurors  aforesaid  unknown,  against,  &c.,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(337)  Second  count.     Same,  averring  time  of  coining. 

That  the  said  A.  B.,  on,  &c.,  at,  &c.,  feloniously  did  falsely 
make,  forge,  and  counterfeit  pieces  of  and  other  mixed 

metals,  in  the  resemblance  and  similitude  of         coin,  called 
which  said  coin,  called  after,  &c.,  and  before,  &c.,  had 

been  coined  at  the  mint  of  the  United  States  of  America,  with 
intent  to  defraud  some  person  or  persons  to  the  jurors  aforesaid 
unknown,  against,  &c.,  and  against,  &c.  [Conclude  as  in  hook  1, 
chapter  3.) 

(338)  Third  count.     Passing,  ^c. 

That  the  said  A.  B.,  on,  &c.,  at,  &c.,  feloniously  did  pass,  utter, 
and  publish  as  true,  pieces  of  false,  forged,  and  counter- 

feited coin,  of  metal  in  the  resemblance  and  similitude  of 
coin,  called  a  which  after,  &c.,  and  before,  &c.,  had  been 

coined  at  the  mint  of  the  United  States  of  America,  with  intent 
to  defraud  some  person  or  persons  to  the  jurors  aforesaid  un- 
known, he  the  said  at  the  time  he  so  passed,  uttered,  and 
published  as  true  the  said  last  mentioned  false,  forged,  and  coun- 
terfeited well  knowing  the  same  to  be  false,  forged,  and 
counterfeited,  against,  &c.,  and  against,  &c.  ( Conclude  as  in 
book  1,  chapter  3.) 

(?/i)  This  indictment  is  of  the  character  in  use  in  New  York,  in  the  United 
States  Court.  The  next  two  forms,  which  have  been  sustained  by  the  Circuit 
Court  in  Philadelphia,  are  much  more  concise,  and  equally  accurate. 

330 


forgery;  coining,  uttering,  etc.  (340) 

(339)  Fourth  count.     Same  in  another  shape. 
That  the  said  A.  B.,  on,  &c.,  at,  &c.,  feloniously  did  pass,  utter, 
publish,  and  sell  as  true,  pieces  of  false,  forged,  and  coun- 

terfeited coin,  in  the  resemblance  and  similitude  of  coin,  called  a 

which  said  coin,  called  had  before,  &c.,  been 

coined  at  the  mint  of  the  United  States  of  America,  intending 
by  such  passing,  uttering,  publishing,  and  selling  as  true,  the  said 

pieces  of  false,  forged,  and  counterfeited  coin,  to  defraud 
some  person  or  persons  to  the  jurors  aforesaid  unknown,  he  the 
said  at  the  time  he  so  passed,  uttered,  published,  and  sold 

as  true  the  said  last  mentioned  false,  forged,  and  counterfeited 

pieces  of  coin,  then  and  there  well  knowing  the  same  to 
be  false,  forged,  and  counterfeited,  against,  &c.,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(340)  Fifth  count.     Same^  specifying  party  to  he  defrauded. 

That  the  said  A.  B.,  on,  &c.,  at,  &c.,  feloniously  did  pass,  utter, 
and  publish  as  true,  pieces  of  false,  forged,  and  counter- 

feited coin,  of  metal  in  the  resemblance  and  similitude  of 
coin,  called  a  which  after,  &c.,  and  before,  &c.,  had  been 

coined  at  the  mint  of  the  United  States  of  America,  with  intent 
to  defraud  one  he  the  said  at  the  time  he  so  passed, 

uttered,  and  published   as  true  the   said  last   mentioned   false, 
forged,  and  counterfeited  well  knowing  the  same  to  be  false, 

forged,  and  counterfeited,  against,  &c.,  and  against,  &c.     {Con- 
clude as  in  book  1,  chapter  3.) 

Sixth  count. 

That  the  said  A.  B.,  on,  &c.,  at,  &c.,  feloniously  did  pass,  utter, 
publish,  and  sell  as  true,  pieces  of  false,  forged,  and  coun- 

terfeited coin,  in  the  resemblance  and  similitude  of  the  coin 

of  the  United  States  of  America,  called  w^hich  said 

coin,  called  had  before,  &c.,  been  coined  at  the  mint  of  the 

United  States,  with  intent  to  defraud  one  he  the  said 

at  the  time  he  so  passed,  uttered,  published,  and  sold  as  true  the 
said  last  mentioned  false,  forged,  and  counterfeited  pieces 

of  coin,  then  and  there  well  knowing  the  same  to  be  false,  forged, 

331 

» 


(341)  OFFENCES  AGAINST  PROPERTY. 

and  counterfeited,  against,  &c.,  and  against,  &c.    {Conclude  as  in 
book  1,  chapter  3.) 

Seventh  count. 

( Same  as  sixth  count,  except  instead  of) :  "  did  pass,  utter,  pub- 
lish, and  sell  as  true,"  insert  "  did  attempt  to  pass,  utter,  publish, 
and  sell  as  true,"  and  for  "  with  intent  to  defraud  one  ," 

insert  "  with  intent  to  defraud   some  person   or  persons  to  the 
jurors  aforesaid  unknown." 

Eighth  count. 

( Same  as  seventh  count,  except  instead  of) :  "  had  before,  &c., 
been  coined,  &c.,"  insert  "  had  after,  &c.,  and  before,  &c.,  been 
coined,  &c." 

Ninth  count. 

That  the  said  A.  B.,  on,  &c.,  at,  &c.,  other  pieces  of  coin, 

resembling  and  intended  to  resemble,  and  pass  for  the  coin 

of  the  United  States  of  America,  commonly  known  by  the  name 
of,  and  called  of  the  value  of  feloniously  did  attempt 

to  pass,  utter,  and  publish,  which  said  coin  called  after, 

&c.,  and  before,  &c.,  had  been  coined  at  the  mint  of  the  United 
States  of  America,  with  the  intent  to  defraud  one  he  the 

said  at  the  time  he  so  attempted  to  pass,  utter,  and  pub- 

lish the  said  last  mentioned  false,  forged,  and  counterfeited 
pieces  of  coin,  then  and  there  well  knowing  the  same  to  be  false, 
forged,  and  counterfeited,  against,  &c.,  and  against,  &c.     ( Con- 
clude as  in  book  1,  chapter  3.) 

Last  count. 

{Same  as  ninth  count,  except  that  instead  of) :  "  after,  &c.,  and 
before,  &c.,"  insert  "  before,  &c." 

{For  final  count,  see  ante,  17,  18,  181,  n.,  239,  n.) 

(341)   Counterfeiting  half  dollars  U7ider  act  of  Congress. (z) 

That  A.  B.,  &c.,  late,  &c.,  on,  &c.,  with  force  and  arms,  unlaw- 
fully and  feloniously  did  falsely  make  and  counterfeit,  and  cause 
and  procure  to  be  falsely  made,  forged,  and  counterfeited,  and 
willingly  aid  and  assist  in  falsely  making,  forging,  and  counter- 

(z)  See  act  of  Cong.  April  21,  1806;  2  Sts.  at  Large,  404.  Act  of  Cong. 
March  3,  1825  ;  4  Sts.  at  Large,  121,  §  20,  &c. 

•  332 


FORGERY,    COINING,    UTTERING,    ETC.  (344) 

feiting,  one  coin  in  the  resemblance  and  similitude  of  the  silver 
coin  which  has  been  coined  at  the  mint  of  the  United  States, 
called  a  half  dollar,  contrary,  &c.,  and  against,  &c.  ( Conclude 
as  in  book  1,  chapter  3.) 

[For  final  count.,  see  17,  18,  181,  w.,  239,  n.) 

(342)  Passing  counterfeit  half  dollars,  with  intent  to  d<fraud  an 
unknown  person,  under  act  of  Congress.(a') 

That  A.  B,,  &c.,  late,  &c.,  on,  &c.,  with  force  and  arms,  unlaw- 
fully and  feloniously  did  pass,  utter,  and  publish,  and  attempt  to 
pass,  utter,  and  publish  as  true,  a  certain  false,  forged,  and  coun- 
terfeited coin  in  the  resemblance  and  similitude  of  the  silver  coin 
which  has  been  coined  at  the  mint  of  the  United  States,  called 
a  half  dollar,  he  the  said  then  and  there  knowing  the  same 

to  be  false,  forged,  and  counterfeited,  with  intent  to  defraud  a 
certain  person  to  the  grand  inquest  aforesaid  unknown,  contrary, 
&c.,  and  against,  &c,     [Conclude  as  in  hook  1,  chapter  3.) 

(343)  Second  cou7it.     Same,  with  intent  to  defraud  R.  K. 

That  the  said  A.  B.,  on,  &c.,  at,  &c.j  with  force  and  arms,  un- 
lawfully and  feloniously  did  pass,  utter,  and  publish,  and  attempt 
to  pass,  utter,  and  publish  as  true,  a  certain  other  false,  forged, 
and  counterfeited  coin,  in  the  resemblance  and  similitude  of  the 
silver  coin  which  has  been  coined  at  the  mint  of  the  United 
States,  called  a  half  dollar,  he  the  said  then  and  there  know- 
ing the  same  to  be  false,  forged,  and  counterfeited,  with  intent  to 
defraud  one  R.  K.,  contrary,  &c.,  and  against,  &c.  ( Conclude  as 
in  book  1,  chapter  3.) 

{For  final  count,  see  ante,  17,  18,  181,  n.,  239,  n.) 

(344)  Having  coining  tools  in  possession,  at  common  law^(V) 

That  A.  B.,  late  of  the  county  aforesaid,  yeoman,  being  a  per- 
son of  ill  name  and  fame,  and  of  dishonest  life  and  conversation, 
and  intending  the  faithful  citizens  of  this  commonwealth  to 
cheat,  deceive,  and  defraud,  the  day,  &c.,  at  stamps 

[made  of  wood,  iron,or  whatever  it  be),  upon  which  was  then  and 

(o)  Act  of  Cong.  April  21, 1806  ;  2  Sts.  at  Large,  404.    Act  of  Cong.  March  3, 
1825;  4  Sts.  at  Large,  121,  §  20. 
(6)  Drawn  by  Mr.  Bradford. 

333 


(346)  OFFENCES  AGAINST  PROPERTY. 

there  made  and  impressed  the  figure,  resemblance,  and  similitude 
of  a  good  and  genuine  bill  of  credit,  emitted  and  made  current 
by  the  resolves  of  the  honorable  Continental  Congress,  and  which 
same  stamp  would  then  make  and  impress  the  figure,  resem- 
blance, and  similitude  of  a  good  and  genuine  bill  of  credit,  afore- 
said, without  any  lawful  authority  or  excuse  for  that  purpose, 
knowingly  and  unlawfully  had  in  his  custody  and  possession, 
with  an  intent  to  impress,  forge,  and  counterfeit  the  bills  of 
credit  aforesaid,  and  to  pass,  utter,  and  pay  such  forged  and 
counterfeit  bills  of  credit  to  the  faithful  subjects  of  this  com- 
monwealth and  the  United  States  of  America,  to  the  evil  exam- 
pie  of  all  others  in  like  case  offending,  and  against,  &c.  (  Conclude 
as  in  book  1,  chapter  3.) 

(345)  Making,  forging,  and  counterfeiting,  ^c,  foreign  coin,  quar- 
ter dollar,  under  act  of  Congress.(c~) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  pieces  of  false,  forged, 

and  counterfeited  coin,  each  piece  thereof  resembling  and  in- 
tended to  resemble  and  pass  for  a  quarter  of  a  Spanish  milled 
dollar  {or  otherwise)^  (the  quarter  of  a  Spanish  milled  dollar  then 
and  there  being  a  foreign  silver  coin,  in  actual  use  and  circula- 
tion as  money  within  the  said  United  States),  feloniously  did 
falsely  make,  forge,  and  counterfeit,  against,  &c,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(346)  Second  count.     Procuring  forgery. 

That  the  said  A.  B.,  heretofore,  on,  &c.,  at  &c.,  pieces  of 

false,  forged,  and  counterfeited  coin,  each  piece  thereof  resem- 
bling and  intended  to  resemble  and  pass  for  a  quarter  of  a  Span- 
ish milled  dollar  (the  quarter  of  a  Spanish  milled  dollar  then  and 
there  being  a  foreign  silver  coin,  in  actual  use  and  circulation  as 
money  within  the  said  United  States),  feloniously  did  cause  and 
procure  to  be  falsely  made,  forged,  and  counterfeited,  against,  &c., 
and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

Third  count. 

{Same  as  second  count,  except  instead  of):  "feloniously  did 
cause  and  procure  to  be  falsely  made,  forged,  and  counterfeited, 
(c)  The  defendant  in  this  case  pleaded  guilty. 

334 


FORGERY,    COINING,    UTTERING,    ETC.  (347) 

insert  "feloniously  did  willingly  aid  and  assist  in  falsely  making, 
forging,  and  counterfeiting." 

Fourth  count. 

{Same  as  third  count,  except  instead  of) :  "  feloniously  did  will- 
ingly aid  and  assist  in  falsely  making,  forging,  and  counterfeit- 
ing," insert  "  feloniously  did  utter  as  true,  for  the  payment  of 
money,  with  intent  to  defraud  some  person  or  persons  to  the 
jurors  aforesaid  as  yet  unknown,  he  the  said  then  and  there 

knowing  the  said  last  mentioned  pieces  of  coin  to  be  false, 

forged,  and  counterfeited." 

Fifth  count. 

{Same  as  fourth  count,  substituting-) :  "with  intent  to  defraud 
one  i^^  for  "with  intent  to  defraud  some  person  or  persons 

to  the  jurors  aforesaid  as  yet  unknown." 

{For  final  count,  see  17,  18,  181,  w.,  239,  n.) 

(347)  Passing,  uttering,  and  publishing  counterfeit  coin  of  a  foreign 
country,  under  act  of  Congress,  specifying  party  to  be  de- 
frauded. 

That  A.  B.,  &c.,  on,  &c.,  at,  &;c.,  did  feloniously  pass,  utter,  and 
publish  as  true,  pieces  of  false,  forged,  and  counterfeited 

coin,  in  the  resemblance  and  similitude  of  the  coin  called 

the  dollar  of  Mexico  [or  otherwise),  which,  before  the  said 
on,  &c.,  had  been  by  law  made  current  in  the  said  United  States, 
he  the  said  knowing  at  the  time  he  so  passed,  uttered,  and 

published  the  said  pieces  of  false,  forged,  and  counterfeited 

coin,  that  the  same  were  false,  forged,  and  counterfeited,  and  in- 
tended by  such  passing,  uttering,  and  publishing,  to  defraud  one 
of  the  said  City  of  New  York,  in  the  circuit  and  district 
aforesaid,  against,  &c.,  and  against,  &c.  ( Conclude  as  in  book  1, 
chapter  3.) 

•  Second  count. 

That  the  said  A.  B.,  &c.,  on,  &c.,  at,  &c.,  other  pieces  of 

false,  forged,  and  counterfeited  coin,  in  the  resemblance  and  sim- 
ilitude of  the  foreign  coin  {if  such  is  the  case),  called  the 
of            which,  before  the  said  on,  &c.,  had  been  by 
law  made  current  in  the  said  United  States,  feloniously  did  pass, 

335 


(347)         '   OFFENCES  AGAINST  PROPERTY. 

utter,  and  publish  as  true,  he  the  said  knowing  at  the  time 

he  so  passed,  uttered,  and  published  as  true,  the  said  pieces 

of  false,  forged,  and  counterfeited  coin  last  aforesaid,  that  the 
same  were  false,  forged,  and  counterfeited,  and  intending  by  such 
passing,  uttering,  and  publishing,  to  defraud  some  person  or 
persons  to  the  said  jurors  unknown,  against,  &c.,  and  against, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

Third  count. 

[Same  as  second  count,  substituting)  :  "and  intending  by  such 
passing,  uttering,  and   publishing,  to   defraud   one  of   the 

City  of  New  York,  in  the  circuit  and  district  aforesaid  "  [or  other- 
wise), for  "and  intending  by  such  passing,  uttering,  and  pub- 
lishing, to  defraud  some  person  or  persons  to  the  said  jurors 
unknown." 

Fourth  count. 

That  the  said  A.  B.,  on,  &c.,  at,  &c.,  other  pieces  of  false, 

forged,  and  counterfeited  coin,  in  the  resemblance  and  similitude 
of  the  coin  called  the  of  a  foreign  coin  which, 

before  the  said  on,  &c.,  by  an  act  of  the  Congress  of  the 

United  States  of  America,  entitled,  "  An  Act  regulating  the  cur- 
rency of  foreign  gold  and  silver  coin  in  the  United  States,"  ap- 
proved on  the  third  day  of  March,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  forty-three,  had  been  made  current 
in  the  said  United  States,  feloniously  did  pass,  utter,  and  publish 
as  true,  he  the  said  knowing  at  the  time  he  so   passed, 

uttered,   and  published  as  true  the  said  pieces  of  false, 

forged,  and  counterfeited  coin,  that  the  same  were  false,  forged, 
and  counterfeited,  and  intending  by  such  passing,  uttering,  and 
publishing,  to  defraud  one  of  the  City  and  County  of  New 

York,  in  the  circuit  and  district  aforesaid,  against,  &c.,  and 
against,  &c.     [Conclude  as  in  book  1,  chapter  3.) 

Last  count.  , 

[For  final  count,  see  17,  18,  181,  n.,  239,  n.) 
386 


FORGERY,    COINING,   UTTERING,    ETC.  (349) 

(348)  Debasing  the  coin  of  the  United  States,  ly  an  officer  employed 

at  the  mint,  under  act  of  Congress. (^d^ 
That  A.  B.,  on,  &c.,  at,  &c.,  being  then  and  there  a  person  and 
officer  employed  at  the  mint  of  the  United  States,  at  afore- 

said, did  debase  and  make  worse  certain  pieces,  to  wit,  ten  pieces, 
of  gold  coin  called  eagles  (which  had  been  struck  and  coined  at 
the  said  mint  of  the  United  States),  as  to  the  proportion  of  fine 
gold  therein  contained,  and  which  were  then  and  there  by  the 
said  A.  B.,  he  being  such  person  and  officer  employed  in  the  said 
mint  of  the  said  United  States  as  aforesaid,  made  of  less  weight 
and  value  than  the  same  ought  to  be  by  the  provisions  of  the 
several  acts  and  laws  of  the  said  United  States  relative  thereto, 
through  the  default  and  connivance  of  the  said  A.  B.,  he  being 
then  and  there  such  person  and  officer  employed  as  aforesaid  in 
the  said  mint,  for  the  purpose  of  unlawful  profit  and  gain,  and 
with  an  unlawful  and  fraudulent  intent  to  debase,  make  worse, 
and  render  of  no  value  the  aforesaid  ten  pieces  of  gold  coin, 
against,  &c.,  and  contrary,  &c.  [Conclude  as  in  book  1,  chap- 
ter 3.) 

{For  final  count,  see  17,  18,  181,  n.,  239,  n.) 

(349)  Fraudulently  dim.inishing  the  coin  of  the  United  States,  under 

act  of  Congress. Qe^ 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  did  unlawfully,  fraudulently, 
and  for  gain's  sake,  impair,  diminish,  falsify,  scale,  and  lighten 
certain  pieces,  to  wit,  ten  pieces,  of  gold  coin  called  eagles,  which 
had  been  coined  at  the  mint  of  the  United  States,  with  intent  to 
defraud  some  person  to  the  said  jurors  unknown,  against,  &c., 
and  contrary,  &c.(/)     (  Conclude  as  in  book  1,  chapter  3.) 

{For  final  count,  see  17, 18,  181,  n.,  239,  n.) 

(d)  Davis'  Precedents,  138 

(e)  Davis'  Free.  138.  Act  of  21st  April,  1806,  §  3  ;  Gordon's  Dig.  art.  3631, 
p.  711. 

(y*)  If  the  coin  debased  was  foreign  gold  or  silver,  then  say,  "  which  said  gold 
coin  were  ten  pieces  of  foreign  gold  coin,  which  were  by  the  laws  of  the  United 
States  made  current,  and  were  in  actual  use  and  circulation  as  money,  within 
the  said  United  States." 

VOL.  I.  —22  337 


(352)  OFFENCES  AGAINST  PROPERTY. 

(350)  Uttering  a  counterfeit  half  guinea,  at  common  law.(^g^ 
That  defendant,  on,  &c.,  at,  &c.,  one  piece  of  false  money 
made  of  base  metals,  and  colored  with  a  certain  wash  producing 
the  color  of  gold,  to  the  likeness  and  similitude  of  a  piece  of 
good,  lawful,  and  current  gold  money  and  coin  of  this  realm, 
called  a  h0.1f  guinea,  unlawfully,  unjustly,  and  deceitfully  did 
utter  and  pay  to  one  C.  D.,  for  and  as  a  piece  of  good  and  lawful 
gold  money  and  coin  of  this  realm,  called  half  a  guinea,  he  the 
said  A.  B.jthen  and  there  well  knowing  the  said  piece  to  be  false 
and  counterfeit  as  aforesaid,  to  the  great  damage  of  the  said  C. 
D.,  and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(351)  Passing  counterfeit  coin  similar  to  a  French  coin,  at  common 

law. 

That  M.  B.,  late  of,  &c.,  on,  &c.,  at,  &c.,  one  false,  forged,  and 
counterfeited  piece  of  pewter,  lead,  and  other  base  and  mixed 
metals,  composed  in  form,  similitude,  and  likeness  of  a  silver 
French  crown  (the  same  silver  French  crown  then  and  still  be- 
ing a  silver  French  coin  current  and  passing  in  circulation  in 
this  State),  for  and  as  a  good,  true,  and  genuine  French  silver 
crown,  to  a  certain  J.  J.,  then  and  there  did  pass,  pay  away,  utter, 
and  tender  in  payment,  he  the  said  M.  then  and  there  well 
knowing  the  same  piece  to  be  so  as  aforesaid  false,  forged,  and 
counterfeited,  contrary,  &c.,  and  against,  &c.  ( Conclude  as  in 
book  1,  chapter  3.) 

(352)  Counterfeiting  United  States  coin,  under  the  Vermont  stat- 

ute.Qi) 

That  the  respondent,  at  Weybridge,  "  with  intent  the  good 
people  of  this  State  and  of  the  United  States  to  deceive  and 

(g)   Stark.  C.  P.  447. 

(Ji)  State  V.  Griffin,  18  Verm.  198.  "The  statute,"  it  was  said,  "on  which 
the  third  count  rested,  is  intended  to  reach  every  part  of  the  apparatus  of  coin- 
inw,  however  much  more  might  be  necessary  to  make  that  effective,  and  that, 
therefore,  if  it  be  shown  that  the  respondent  had  in  his  possession  one  half  of  a 
mould,  it  is  sufficient,  without  proof  that  he  also  had  the  other  half. 

"The  allegation,  in  the  indictment,  that  the  respondent,  '  ten  pieces  of  false, 
forged,  and  counterfeit  coin  and  money,'  &c.,  '  unlawfully  and  feloniously  did 
forge,  make,  and  counterfeit,'  &c.,  was  held  sufficient.     The  ambiguity,  it  was 

338 


FORGERY,    COINING,    UTTERING,    ETC.  (353) 

defraud,  with  force  and  arms,  on  the  tenth  day  of  April,  A.  D. 
1845,  ten  pieces  of  false,  forged,  and  counterfeit  coin  and  money, 
of  pewter,  lead,  tin,  and  zinc,  and  other  mixed  metals,  in  the 
similitude  of  the  good,  legal,  and  current  money  and  silver  coins 
of  the  United  States,  which  are  current  by  law  and  usage  in  this 
State,  called  '  half  dollars,'  then  and  there  unlawfully  and  feloni- 
ously did  forge,  make,  and  counterfeit,  contrary,"  &c.  [Conclude 
as  in  book  1,  chapter  3.)  ( The  second  count  was  for  having'  in 
possession  counterfeit  coin,  with  intent  to  pass  the  same.  The  third 
count  was  for  having-  in  possession  divers  moulds  and  patterns, 
adapted  and  designed  for  making  counterfeit  coin,  ivith  intent  to 
use  the  same  in  coining  counterfeit  half  dollars.) 

(353)  Having   in  possession  coinii^g  instruments,  under  the  Rev. 
Sts.  of  Massachusetts,  ch.  127,  §  18. (i) 

That  A.  B.,  at,  &c.,  on,  &c.,  did  knowingly  have  in  his  posses- 
sion a  certain  mould,  pattern,  die,  puncheon,  tool,  and  instrument 
adapted  and  designed  for  coining  and  making  one  side  of  a 
counterfeit  coin,  in  the  similitude  of  one  side  or  half  part  of  a 
certain  silver  coin,  called  a  half  dollar,  to  wit,  that  side  or  half 

said,  arises  only  from  tke  different  sense  in  which  the  word  '  counterfeit '  is 
used." 

An  indictment  for  having  in  possession  counterfeit  coin,  it  was  ruled,  need 
not  aver  that  the  denomination  of  coin  which  was  counterfeited  was  '  current 
by  law,  or  usage,  in  this  State,"  it  being  averred,  that  the  coin  was  one  of  the 
current  silver  coins  of  the  United  States.  The  court  will  take  judicial  notice 
that  the  current  coins  of  the  United  States  are  current  also  in  this  State. 

In  such  indictment  it  is  not  necessary  to  aver  of  what  materials  the  counter- 
feit coin  was  made  ;  and  if  averred  it  need  not  be  proved. 

(i)  Com.  V.  Kent,  6  Met.  221.  In  this  case  it  was  held  that  under  the  Rev. 
Sts.  ch.  127,  §  19,  providing  for  the  punishment  of  a  person  who  shall  knowingly 
have  in  his  possession  any  instrument  adapted  and  designed  for  coining  or  mak- 
ing count«^rfeit  coin,  with  intent  to  use  the  same,  or  cause  or  permit  the  same  to 
be  used,  in  coining  or  making  such  coin,  a  person  is  punishable  for  so  having  in 
his  possession,  with  such  intent,  an  instrument  adapted  and  designed  to  make 
one  side  only  of  a  counterfeit  coin. 

On  the  trial  of  a  party  who  is  indicted  for  knowingly  having  in  his  possession 
an  instrument  adapted  and  designed  for  coining  or  making  counterfeit  coin,  with 
intent  to  use  it,  or  cause  or  permit  it  to  be  used,  in  coining  or  making  such  coin, 
he  cannot  give  in  evidence  his  declarations  to  an  artificer,  at  the  time  he  era- 
ployed  him  to  make  such  instrument,  as  to  the  purposes  for  which  he  wished  it 
to  be  made. 

339 


(355)  OFFENCES    AGAINST   PROPERTY. 

part  thereof,  which  represents  a  spread  eagle,  and  has  the  words, 
"  United  States  of  America  —  Half  Dollar ; "  said  coin,  called  a 
half  dollar,  being  current  by  law  and  usage  in  this  State  and 
commonwealth  aforesaid,  with  intent  to  use  and  employ  the  said 
mould,  pattern,  die,  puncheon,  tool,  and  instrument,  and  cause 
and  permit  the  same  to  be  used  and  employed,  in  coining  and 
making  such  false  and  counterfeit  coin  as  aforesaid,  &c. 

(354)  Having  m  possession  ten  counterfeit  pieces  of  coin  with  intent 
to  pass  the  same,  under  Rev.  Sts.  of  Mass.  ch.  127,  §  16.  (y) 

That,  &c.,  at,  &c.,  on,  &c.,  had  in  his  custody  and  possession, 
at  the  same  time,  ten  similar  pieces  of  false  and  counterfeit  coin, 
of  the  likeness  and  similitude  of  the  silver  coin  current  within 
this  commonwealth,  by  the  laws  and  usages  thereof,  called  Mex- 
ican dollars,  with  intent  then  and  there  the  said  pieces  of  false 
and  counterfeit  coin  to  utter  and  pass  as  true,  he  the  said  D.  R. 
F.  then  and  there  well  knowing  the  same  to  be  false  and  coun- 
terfeited, against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(355)  Having  in  custody  less  than  ten   counterfeit  pieces  of  coin^ 

under  Rev.  Sts.  of  Mass.  ch.  127,  §  16.(^) 
That  A.  B.,  on,  &c.,  at,  &c.,  "  had  in  his  custody  and  posses- 
sion (at  the  same  time)  a  certain  piece  of  false  and  counterfeit 

(y)  Com.  V.  Fuller,  8  Met.  313,  where  the  exceptions  to  this  form  were  over- 
ruled. 

(Jc)  Com.  V.  Stearns,  10  Met.  256.  Dewey,  J. :  "  The  objection  of  variance 
between  the  proof  offered  and  the  offence  charged,  is  not  sustained.  The  crime 
charged  in  the  indictment  is  the  having  in  possession,  &c.,  a  certain  counterfeit 
coin,  in  the  likeness  of  a  silver  coin  called  a  dollar.  The  evidence  shows  this 
coin  to  have  been  in  the  likeness  and  similitude  of  a  Mexican  dollar.  But  a 
Mexican  dollar  is  not  the  less  a  dollar,  nor  is  it  inappropriately  described  as  a 
dollar.  The  term  '  dollar '  does  not  import  a  coin  coined  at  the  mint  of  the 
United  States.  The  United  States  statute  of  1792,  c.  16,  legalized  the  dollar 
of  the  United  States  coinage,  and  the  statute  of  1834,  c.  71,  legalized  the  dollar 
of  Mexico.  Both  are  adopted  by  us,  and  both  are  coins  current,  by  law  and 
usage,  in  this  commonwealth ;  and  the  having  in  possession  of  counterfeits  of 
either,  with  the  criminal  intent  described  in  the  Rev.  Sts.  ch.  127,  §§  15,  16,  con- 
stitutes the  statutory  offence. 

"  The  only  question  in  the  present  case,  that  can  require  much  consideration, 
is  that  which  arises  upon  the  motion  in  arrest  of  judgment  for  supposed  de- 
ficiency in  the  allegations  in  the  indictment.  As  to  the  first  of  these  reasons,  viz., 
that  the  indictment  is  insufficient,  inasmuch  as  the  term  '  dollar,'  therein  used, 

340 


FORGERY,    COINING,    UTTERING,    ETC.  (356) 

coin,  counterfeited  in  the  likeness  and  similitude  of  the  good  and 
legal  silver  coin  current  within  said  commonwealth,  by  the  laws 
and  usages  thereof  called  a  dollar,  with  intent  then  and  there 
to  pass  the  same  as  true ;  he  the  said  A.  B.  then  and  there  well 
knowing  the  same  to  be  false  and  counterfeit,"  &c. 

(856)  For  uttering  and  publishing  as  true  a  forged  promissory  note. 
Rev.  Sis.  of  Mass.  ch.  127,  §  2.(a) 

That  C.  D.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  at  B.  aforesaid,  in  the 

county  aforesaid,  had  in  his  custody  and  possession  a  certain 
false,  forged,  and  counterfeit  promissory  note,  the  said  C.  D.  then 
and  there  knowing  the  same  to  be  false,  forged,  and  counterfeit, 
which  false,  forged,  and  counterfeit  promissory  note  is  of  the 

may  denote  a  coin,  the  counterfeiting  whereof  is  not  criminal  by  the  laws  of  this 
commonwealth,  it  seems  to  be  answered  by  the  very  language  of  the  indictment. 
The  dollar  therein  set  forth  is  alleged  to  be  '  in  the  similitude  of  the  legal  silver 
coin  current,  by  law  and  usage,  in  this  commonwealth.'  And  this  is  a  substan- 
tial allegation,  that  must  be  proved.  Hence,  no  dollar  that  is  not  of  the  simili- 
tude of  the  legal  silver  coin  of  this  commonwealth,  will  correspond  with  that  set 
forth  in  the  indictment,  and  furnish  the  proof  requisite  to  a  conviction. 

"  The  remaining  inquiry  is  whether  the  indictment  is  bad  for  uncertainty,  in 
not  specifying,  with  greater  particularity,  the  descriptive  character  of  the  coun- 
terfeit dollar,  as  of  the  coinage  of  the  Mexican  government  and  in  the  similitude 
of  a  Mexican  dollar.  It  is  true  that  the  indictment  must  particularly  set  forth 
the  kind  of  coin  alleged  to  be  counterfeit,  &c.,  as  is  stated  in  2  Hale's  P.  C.  187, 
and  2  Chit.  C.  L.  105,  note  d.  But  that  rule  does  not  affect  the  present  ques- 
tion, nor  present  any  objection  to  this  indictment.  The  kind  of  coin  to  be  set 
forth  and  described,  is  the  denomination  or  name  of  the  coin ;  as  the  dollar,  the 
half  dollar,  or  the  dime,  as  the  case  may  be.  And  if  this  indictment  had  merely 
described  the  alleged  counterfeit  coin  to  be  in  the  likeness  of  silver  coin  current 
in  this  commonwealth,  by  the  laws  and  usages  thereof,  it  would  have  presented 
a  case  liable  to  the  objection  of  a  want  of  particularity  of  description.  But  such 
is  not  the  case  here.  The  coin  is  described  under  its  appropriate  denomination, 
and  that  is  sufficient,  without  adding,  as  a  further  description,  the  place  of  coin- 
age. The  place  of  coinage  of  a  dollar  is  no  necessary  part  of  the  description 
which  is  required  to  be  given  of  a  coin  in  an  indictment.  The  recital  of  the 
various  inscriptions  and  devices  borne  on  it,  and  particularly  the  date  of  its  issue, 
would  seem  to  be  quite  as  material  as  the  place  of  coinage  ;  but  these  are  not 
required  to  be  specified.  The  court  are  of  opinion  that  this  objection  is  not  sus- 
tained either  by  authority  or  sound  principle." 

(a)  This  and  the  nine  following  precedents  are  taken  from  Tr.  &  Heard's 
Prec.  224-232. 

341 


(859)  OFFENCES    AGAINST   THE    PERSON. 

tenor  following,  that  is  to  say,  &c. ;  and  that  the  said  C.  D.  did 
then  and  there  feloniously  utter  and  publish  the  same  as  true, 
with  intent  thereby  then  and  there  to  injure  and  defraud  one  J. 
N. ;  the  said  C.  D.  then  and  there  knowing  the  said  promissory 
note  to  be  false,  forged,  and  counterfeit ;  against,  &c.  {Conclude 
as  in  book  1,  chapter  3.) 

(357)  For  forging  a  promissory  note.     Rev.  Sts.  of  Mass.  eh.  127, 

§1. 
That  C.  D.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  at  B.  aforesaid,  in  the 

county  aforesaid,  feloniously  did  falsely  make,  forge,  and  coun- 
terfeit a  certain  false,  forged,  and  counterfeit  promissory  note, 
which  false,  forged,  and  counterfeit  promissory  note  is  of  the 
tenor  following,  that  is  to  say,  &c.,  with  intent  thereby  then  and 
there  to  injure  and  defraud  one  J.  N. ;  against,  &c.  [Conclude 
as  in  book  1,  chapter  3.) 

(358)  For  counterfeiting  a  hank  hill.     Rev.  Sts.  of  Mass.  eh.  127, 

•        §4. 

That  C.  D.,  late  of,  &c.,  on  the  first  day  of  June,  in  the  year  of 
our  Lord  at  B.,  in  the  County  of  S.,  feloniously  did  falsely 

make,  forge,  and  counterfeit  a  certain  false,  forged,  and  counter- 
feit bank  bill,  payable  to  the  bearer  thereof,  purporting  to  be 
issued  by  the  President,  Directors,  and  Company  of  the  Mer- 
chants' Bank,  then  being  an  incorporated  banking  company 
established  in  this  State,  to  wit,  at  B.,  in  the  county  of  S.,  and 
commonwealth  aforesaid,  which  said  false,  forged,  and  counter- 
feit bank  bill  is  of  the  tenor  following,  that  is  to  say,  &c.,  with 
intent  thereby  then  and  there  to  injure  and  defraud  one  J.  N. ; 
against,  &c.     (Conclude  as  in  book  1,  cha,pter  3.) 

(359)  For  having  in  possessioyi  at  the  same  time,  ten  or  more  coun- 
terfeit hank  bills,  with  intent  to  utter  and  pass  the  same  as 
true.     Rev.  Sts.  of  Mass.  ch.  127,  §  5. 

That  C,  D.,  late  of,  &c.,  on  the  first  day  of  June,  at  B.,  in  the 
County  of  S.,  had  in   his  possession  at  the  same  time,(J)  ten 

(h)  It  is  necessary  to  aver  that  the  defendant  had  the  bills  in  his  possession 
at  the  same  time.     An  averment  that  he  had  them  in  his  possession  on  the  same 

342 


FORGERY,    COINING,    UTTERING,    ETC.  (^61) 

similar  false,  forged,  and  counterfeit  bank  bills,  payable  to  the 
bearer  thereof,  purporting  to  be  issued  by  the  President,  Directors, 
and  Company  of  the  Suffolk  Bank,  then  being  an  incorporated 
banking  company  established  in  this  State,  to  wit,  at  B.,  in  the 
County  of  S.,  and  commonwealth  aforesaid,  one  of  which  said 
false,  forged,  and  counterfeit  bank  bills  is  of  the  following  tenor, 
that  is  to  say(c)  (here  insert  a  true  copy  of  all  and  each  of  the  ten 
bills ;  after  inserting-  a  true  copy  of  the  firsts  go  on  to  say,  one 
other  of  ivhick  said  false^  forged,  and  counterfeit  bank  bills  is  of 
the  following  tenor,  and  so  on  with  the  whole  of  them) ;  the  said 
C.  D.  then  and  there  knowing  each  and  every  one  of  said  bank 
bills  to  be  false,  forged,  and  counterfeit  as  aforesaid,  with  intent 
then  and  there  to  utter  and  pass  the  same  as  true,  and  thereby 
then  and  there  to  injure  and  defraud  one  J.  N. ;  against,  &c. 
(Conclude  as  in  book  1,  chapter  3.) 

(360)  Passing  a  counterfeit  bank  hill.     Rev.  Sts.  of  Mass.  eh.  127, 

§6. 
That  C.  D.,  late  of,  &c.,  on  the  first  day  of  June,  in  the  year  of 
our  Lord  at  B.,  in  the  County  of  S.,  did  utter  and  pass  to 

one  E.  F.  a  certain  false,  forged,  and  counterfeit  bank  bill,  pay- 
able to  the  bearer  thereof,  purporting  to  be  issued  by  the  Pres- 
ident, Directors,  and  Company  of  the  Suffolk  Bank,  then  being 
an  incorporated  banking  company  established  in  this  State,  to  wit, 
at  B.  aforesaid,  in  the  county  aforesaid,  and  commonwealth  afore- 
said, which  said  false,  forged,  and  counterfeit  bank  bill  is  of  the 
tenor  following,  that  is  to  say,  &c.,  with  intent  thereby  then  and 
there  to  injure  and  defraud  the  said  E.  F.,  the  said  C.  D.  then 
and  there  knowing  the  said  bank  bill  to  be  false,  forged,  and 
counterfeit,  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(361)  Having  in  possession  a  counterfeit  hank  hill,  ivith  intent  to 

pass  the  sayne.     Rev.  Sts.  of  3Iass.  ch.  127,  §  8. 

'     That  C.  D.,  late  of,  &c.,  on  the  first  day  of  June,  in  the  year  of 

day,  is  not  sufficient.  Edwards  v.  The  Commonwealth,  19  Pickering,  124.  And 
see  Rex  v.  Williams,  2  Leach,  C.  C.  (4th  London  ed.)  529. 

(c)  If  the  defendant  has  retained  possession  of  the  bills,  allege  as  follows : 
"  Each  and  every  one  of  which  said  false,  forged,  and  counterfeit  bank  bills  were 
then  and  there  retained  and  kept  by  the  said  C.  D.,  so  that  the  jurors  aforesaid 
cannot  set  forth  the  tenor  thereof."     Tr.  &  H.  Prec. 

348  ' 


(363)  OFFENCES  AGAINST  PROPERTY. 

our  Lord  at  B.,  in  the  County  of  S.,  had  in  his  possession 

a  certain  false,  forged,  and  counterfeit  bill,  in  the  similitude  of  the 
bills  payable  to  the  bearer  thereof,  and  issued  by  the  President, 
Directors,  and  Company  of  the  Boylston  Bank,  then  being  a 
banking  company  established  in  this  State,  to  wit,  at  B.,  in  the 
County  of  S.,  and  commonwealth  aforesaid,  which  said  false, 
forged,  and  counterfeit  bank  bill  is  of  the  tenor  following,  that  is 
to  say,  &c.,  with  intent  then  and  there  to  utter  and  pass  the  same, 
the  said  C.  D.  then  and  there  knowing  the  said  bank  bill  to  be 
false,  forged,  and  counterfeit ;  against,  &c.  ( Conclude  as  in  book 
1,  chapter  3,) 

(362)  Making  a  tool  to  he  used  in  counterfeiting  bank  notes.    Rev. 

Sts.  of  Mass.  ch.  127,  §  9. 

That  C.  D.,  late  of,  &c.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  at  B.,  in  the  County  of  S.,  did  engrave  and 

make  a  certain  plate,  the  same  being  then  and  there  an  instru- 
ment and  implement  adapted  and  designed  for  the  forging  and 
making  of  false  and  counterfeit  notes,  in  the  similitude  of  the 
notes  issued  by  the  President,  Directors,  and  Company  of  the 
Suffolk  Bank,  then  being  a  banking  company  legally  established 
in  this  State,  to  wit,  at  B.,  in  the  County  of  S.,  and  commonwealth 
aforesaid  ;  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(363)  Having  in  possession  a  tool  to  be  used  in  counterfeiting  bank 
notes,  with  intent  to  use  the  same.     Rev.  Sts.  of  Mass.  ch.  127, 

§  9- 
That  C.  D.,  late  of,  &c.,  on  the  first  day  of  June,  in  the  year  of 
our  Lord  at  C,  in  the  County  of  M.,  feloniously  had  in  his 

possession  a  certain  engraved  plate,  the  same  being  then  and 
there  an  instrument  adapted  and  designed  for  the  forging  and 
making  false  and  counterfeit  notes  in  the  similitude  of  the  notes 
issued  by  the  President,  Directors,  and  Company  of  the  Mer- 
chants' Bank,  then  being  a  banking  company  established  in  this 
State,  to  wit,  at  B.,  in  the  County  of  S.,  and  commonwealth 
aforesaid,  with  intent  then  and  there  to  use  the  same  in  forging 
and  making  false  and  counterfeit  notes  in  the  similitude  of  the 
notes  issued  by  the  President,  Directors,  and  Company  of  the 


FORGERY,   COINING,    UTTERING,   ETC.  (366) 

said  Merchants'  Bank;  against,  &c.  {Conclude  as  in  hook  1, 
chapter  3.) 

(364)  Counterfeiting  current  coin.    Rev,  Sts.  of  Mass.  ch.  127,  §  15. 

That  C.  D.,  late  of  B.,  in  the  County  of  S.,  yeonfian,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  at  B.  aforesaid, 

in  the  county  aforesaid,  did  counterfeit  a  certain  piece  of  silver 
coin,  current  within  this  State,  to  wit,  the  commonwealth  afore- 
said, by  the  laws  and  usages  thereof,  called  a  dollar ;  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(365)  Uttering  and  passing  counterfeit  coin.     Rev.  Sts.  of  Mass. 

ch.  127,  §  16. 

That  C.  D.,  late  of,  &c.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  at  B.,  in  the  County  of  S.,  a  certain  piece  of 

counterfeit  coin,  counterfeited  in  the  likeness  and  similitude  of 
the  good  and  legal  silver  coin  current  within  this  State,  to  wit, 
the  commonwealth  aforesaid,  by  the  laws  and  usages  thereof, 
called  a  dollar,  did  utter  and  pass  as  true  to  one  E.  F.,  the  said 
C,  D.  then  and  there(c?)  well  knowing  the  same  to  be  false  and 
counterfeit ;  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(366)   Coining^  ^c,  under  the  North  Carolina  statute.(o) 

That  the  defendant,  on,  &c.,  with  force  and  arms,  in  the  county 
aforesaid,  one   pair  of  dies,   upon   which  then  and  there  were 

((/)  An  indictment  which  charged  the  defendant  with  uttering  a  counterfeit 
half  crown  to  M.  A,  W.,  "knowing  the  same  to  be  false  and  counterfeit,"  omit- 
ting the  words  "  then  and  there,"  was  held  sufficient.  Regina  v.  Page,  2  Moody, 
C.  C.  219. 

(o)  State  V.  Haddock,  2  Hawks,  462.  Taylor,  C.  J. :  "It  does  not  admit  of 
any  reasonable  doubt,  that  a  pair  of  dies  is  an  instrument  or  instruments,  within 
the  4th  sect,  of  the  act  of  1811,  c.  814,  upon  which  the  first  count  is  framed;  and 
being  more  generally  used  in  coinage  than  any  other  instrument,  is  one  upon 
which  the  act  would  be  most  likely  to  operate  frequently.  It  may  be  said,  that 
as  the  dies  ai-e  described  as  having  impressed  upon  them  only  the  likeness,  si- 
militude, figure,  and  resemblance  of  the  sides  of  a  Spanish  milled  dollar,  and  not 
the  edges,  that  they  cannot  answer  the  purpose  described  in  the  act,  of  making 
a  counterfeit  similitude  or  likeness  of  a  SiDanish  milled  dollar.  But  it  is  for  the 
jury  to  consider  whether  the  dies  be  calculated  to  impress  the  counterfeit  simili- 
tude or  likeness  of  a  dollar ;  for  these  words  in  the  act  extend  the  offence  be- 
yond an  exact  imitation  of  the  figures  and  marks  of  the  coin.     For  if  the  instru- 

346 


(366) 


OFFENCES    AGAINST   PROPERTY. 


made  and  impressed  the  likeness,  similitude,  figure,  and  resem- 
blance of  the  sides  of  a  lawful  Spanish  milled  dollar,  without 
any  lawful  authority,  then  and  there  feloniously  had  in  his  posses- 
sion, &c.,  for  the  purpose  of  then  and  there  making  and  counter- 
feiting money,  in  the  likeness  and  similitude  of  Spanish  milled 
silver  dollars,  contrary,  &c.,  and  against,  &c.  [Conclude  as  in 
book  1,  chapter  3.) 

ment,  in  point  of  fact,  will  impose  on  the  world,  in  general  it  is  sufficient  -whether 
the  imitation  be  exact  or  not.  And  this  is  the  construction,  upon  those  highly 
penal  acts,  relative  to  the  coin,  in  England.  Thus,  having  knowingly  in  posses- 
sion a  puncheon  for  the  purpose  of  coining,  is  within  the  stat.  of  8  &  9  Wm. 
III.,  though  that  alone,  without  the  counter  puncheon,  will  not  make  the  figure ; 
and  though  such  puncheon  had  not  the  letters,  yet  it  was  held  sufficiently  de- 
scribed in  the  indictment  as  a  puncheon,  which  would  impress  the  resemblance 
of  the  head  side  of  a  shilling.  1  East,  P.  C.  171.  But  if  the  parts  of  this  in- 
dictment which  are  employed  in  a  description  of  the  dies  were  altogether  omit- 
ted, the  charge  would  be  within  the  act,  for  it  would  then  read,  that  the  defend- 
ants had  in  their  possession  a  pair  of  dies,  for  the  purpose  of  making  counterfeit 
dollars,  which  is  the  crime  in  substance  created  by  the  act.  As  I  do  not  perceive 
any  ground  for  any  other  objection  arising  from  the  record,  the  case  having  been 
submitted  without  argument,  my  opinion  is,  that  the  reasons  in  arrest  be  over- 
ruled."    And  in  this  opinion  the  rest  of  the  court  concurred. 

That  it  did  not  appear  in  the  indictraent  i 
that   at   the    date  of  the  instrument  there 
was  $63  or  any  other  sum   in   the   county  ] 
treasury  set  apart  to  road  district  No.  0 ;  or  j 
that  the  road  supervisor  had  any  authority 
to   emoloy  any  labor   in   the  district,  or  to  | 
issue  certificates  as  to  the  amount  of  labor 
performed.  . 

That  the  instrument  was  incomplete,  m 


The  Demurrers  Again  Sustafned    and  as 

an  Appeal  Was  TaUen  th«  Supreme 

Court  Must  Decide, 


,     The  demurrers  of  D.  L.  Gee  to  the  four 
1  indictments   accusing    him    of  having  ut- 
tered   forged   road    tiroe-r-hecks  were  eus-        xna.  ui«  iu...u...^ - 

SIT.h'"^   ^''^.^^  Stephens  yesterday,  and  i  that  it  appeared   to   be    in   the   form  of  a 

the  indjctments  were,  for  the  fourth  time,  

ordered  resubmitted  to  the  grand  jur>  for 
revision.  A  floe  point  of  law  is  involved 
m  this  case,  and  in  order  to  have  it  settled 
forever ,  District  Attorney  Hume  will  ap- 
peal from  the  decision  of  the  court  on  one 
demurrer,  and  obtain  the  opinion  of  the 
supreme  court  on  the  question. 

The  allegations  of  this  demurrer  were  • 

That  the  indictn5ent  did  not  state  facts 
,  sufQcient  to  constitute  a  crime. 

Lh^''^J^*i^    instrument   in    writing  (time 
j  check)  did  not  appear  on  its  face  to  have 
I  any  legal    efficacy,  and    no  sufficient  ex- 
i  trinsic  facts  were  alleged  in  the  indictment  , 
to  show  such  efficacy,  or  that  the   instru- ! 
ment  was  subject  of  forgery.  j ' 

That  the  instrument  was  not  the  certifl-  I ; 
I  cate  of  a  road  supervisor  within  the  mean- 
mg  of  the  law  providing  for  certificates.       I  ] 

That  the  figures  in  the  second  right  col-  I 
umns  in  the  instrument  did  not  explain  | 
,  themselves,   and  no  extrinsic  facts  were 
stated  to  show  wliat  they  meant  or  stood    i 


draft  on  Multnomah  county,  and  the  name 
of  no  drawer  was  signed  thereto. 

That  the  instrument  did  not  appear  on  its 
far-e  to  be  an  evidence    of   debt  within  the  | 
meaning  of  section  1809,  Hill's  annotated  j 
code ;    nor  were  any  extrinsic  facts  alleged  , 
in   the  indictment  which    showed  that  the  ;  ^ 
I    instrument  was  or  could  be  any  evidenceof 
debt  under  said  section.  v 

i  That  it  appeared  affirmatively  that  the 
j  investtnent  was  not  evidence  of  debt 
I  against  Multnomah  county  until  approved 
j  by  the  county  court,  and  it  was  not  al- 
j  leged  that  said  instrument,  at  the  time  it 
'  was  forged  or  uttered,  had  been  approved 
by  the  county  court. 

I     The  other  demurrers  were  the  same  as 
I  the  foregoing. 

i  The  argumenta  on  the  demurrer  were 
i  made  by  District  Attorney  Hutne  for  the 
state,  and  ex-Cucuit  Judge  Pipes  for  the 
defendant.  The  court  sustained  the  de- 
murrer, holding  that  road  timecheckB 
were  not  evidence  of  debt  against  the 
county  until  approved  by  the  county  court, 
and  that  the  certificates  were  of  such  a 


BURGLARY. 


CHAPTER  II. 

BURGLARY.(ai) 

(367)  General  frame  of  indictment  for  burglary  and  larceny,  at  common 

law. 

(368)  Burglary  and  larceny  at  common  law.     Another  form. 

(369)  Second  count.     Receiving  stolen  goods. 

(370)  Burglary  at  common  law  with  no  larceny. 

(a^)  See  the  subject  generally  treated  in  Wh.  C.  L.  as  follows  :  — 
A.  Statutes. 

United  States. 

Burglary  in  vessel,  boat,  or  raft,  §  1511. 
Massachusetts. 

Burglary  in  dwelling-house  in  night-time,  &c.,  and  armed  with  dan- 
gerous weapon,  §  1512. 

Same,  not  armed  with  dangerous  weapon,  §  1513. 
New  York. 

Burglary,  §  1514. 

In  the  first  degree,  §  1515. 

In  the  second  degree,  §  1516. 

In  the  third  degree,  §  1517. 

Punishment,  §  1518. 
Pennsylvania. 

Burglary  in  dwelling-house,  §  1519. 

In  State-house,  church,  academy,  or  library,  §  1520. 

Punishment,  §  1521. 

Bail,  §  1522. 

Restitution  of  goods,  §  1523. 
Virginia. 

Burglary,  punishment,  and  definition,  §  1524. 

Entering,  without  breaking,  dwelling-house,  office,  ship,  banking- 
house,  &c.,  ship,  or  vessel,  §  1525. 

Punishment,  §  1526. 
Ohio. 

Burglary  in  dwelling-house,  kitchen,  church,  school,  &c.,  §  1527. 

Entering  in  day  or  night,  dwelling,  &c.,  with  intent  to  commit  cer- 
tain off'ences,  §  1528. 

Breaking  open  houses  in  the  night  and  committing  or  attempting 
to  commit  personal  violence,  §  1529. 

Committing  like  ofience  in  the  day,  §  1530. 

847 


OFFENCES    AGAINST    PROPERTY. 

(371)  Breaking  into  dwelling-house,  not  being  armed,  with  intent  to  com- 

mit larceny,  under  Massachusetts  statute. 

(372)  General  frame  of  indictment  in  New  York. 

(373)  Burglary,  by  breaking  out  of  a  house. 

(374)  Burglary  and  larceny,  and  assault  with  intent  to  murder. 

(375)  Burglary,  with  violence. 

(376)  Burglary  and  rape. 

(377)  Burglary  with  intent  to  ravish:  with  a  count  for  burglary  with 

violence,  under  stat.  7  Wm.  IV.  and  1  Vict.  c.  86,  s.  2. 

(378)  Burglary  and  larceny,  at  common  law,  by  breaking  into  a  parish 

church. 

(379)  Burglary  and  larceny.     Breaking  and  entering  a  store  and  steal- 

ing goods,  under  Ohio  statute. 

(380)  Burglary  and  larceny.     Breaking  and  entering  a  meeting-house, 

and  stealing  a  communion  cup  and  chalice,  under  Ohio  statute. 

(381)  Burglary.      Breaking   and   entering  a  storehouse  with  intent  to 

steal,  under  Ohio  statute. 

(382)  Burglary.    Breaking  and  entering  a  shop  with  intent  to  steal,  under 

Ohio  statute. 

(383)  Burglary.     Breaking  and  entering  a  dwelling-house  with  intent  to 

steal,  under  Ohio  statute. 

B,  Burglary  at  Common  Law. 
I.  Breaking  (Wh.  C.  L.),  §  1532. 

1st.  Entering  door  or  window  partially  open,  §  1532. 

2d.  Where  the   place  broken  into  is  not  part  of  the  dwelling-house, 

§  1533. 
3d.   Breaking  through  outer  covering,  §  1535. 
4th.  Breaking  on  the  inside,  §  1536. 
5th.  Breaking  chest  or  trunk,  §  1537. 
6th.  Manual  violence  not  necessary,  §  1538. 
7th.  Entrance  by  trick,  §  1539. 
8th.  Conspiracy  with  servant,  §  1540. 
9th.  Breaking  by  pulling,  pushing,  or  lifting,  §  1541. 
10th.  Entrance  by  chimney,  §  1543. 
11th.  Where  there  is  an  aperture  already  open,  §  1544. 
12th.  Entering  by  the  master's  connivance,  §  1545. 
13th.  Breaking  out  of  a  house,  §  1546. 
14  th.  Evidence  of  breaking,  §  1547. 

15th.  Terror,  without  breaking,  producing  surrender  of  goods,  §  1548. 
n.  Entrrj,  §  1549. 
in.  Dwelling-liouse,  §  1555. 
IV.   Ownership,  §  1577. 
V.   Time,  §  1592. 
VI.  Intention,  §  1598. 
Vn.  Indictment,  §  1607. 

348 


BURGLARY.  (367) 

(384)  Breaking  and  entering  a  mansion-house  in  the  daytime,  and  at- 

tempting to  commit  personal  violence,  imder  Ohio  statute. 

(385)  Breaking  and  entering  a  mansion-house  in  the  night  season,  and 

committing  personal  violence,  under  Ohio  statute. 

(386)  Against  a  person  for  attempting  to  break  and  enter  a  dwelling- 

house  at  night,  at  common  law. 

(387)  Breaking  a  storehouse  with  intent  to  enter  and  steal,  at  common 

law. 

(388)  Being  found  by  night  armed,  with  intent  to  break  into  a  dwelling- 

house,  and  commit  a  felony  therein. 

(367)    General  frame  of  indictment  for  burglary  and  larceny^  at 

common  law.(cL) 

That  A.  B.,  late  of,  &c.,  in,  &c.,  laborer,  on,  &c.,  about  the  hour 

of  one  of  the  night,(5)  of  the  same  day,  with  force  and  arms,  at 

the   parish (c)   aforesaid,  in  the  county  aforesaid,  the  dwelling- 

house(c?)  of  one  S.  D.(e)  there  situate,  feloniously (/)  and  bur- 

(a)   This  form  is  taken  from  Stark.  C.  P.  435. 

(6)  It  is  necessary  to  allege  a  particular  hour  (State  v.  G.  S.,  1  Tyler,  295), 
and  to  state  it  to  be  in  the  night  of  the  preceding  day,  though  after  twelve 
o'clock.  If  the  noctanter  be  omitted  in  the  common  form  averring  larceny,  the 
indictment  will  be  turned  into  one  for  larceny.  Thompson  v.  Com.,  4  Leio-h, 
652.  It  is  certainly  bad  to  aver  the  offence  to  have  been  committed  "  between 
the  hours  of  twelve  at  night  and  nine  in  the  next  morning"  (State  v.  Mather, 
Chip.  32),  though  the  day  and  hour  themselves  are  not  material  to  be  proved  as 
laid.     See  Wh.  C.  L.  §  270. 

(c)  The  place  should  be  correctly  stated. 

(rf)  See  on  this  point  AVh.  C.  L.  §§  1577,  1607.  The  house  must  be  described 
as  the  dwelling-house  of  the  real  tenant  (Stark.  C.  P.  79)  ;  and  this  is  the  proper 
description,  though  part  only  of  the  house  be  separately  occupied.  The  particu- 
lar interest  of  the  alleged  owner  is  immaterial.  It  is  enough  if  the  house  be  his. 
People  V.  Van  Blarcum,  2  Johns.  105.  Burglary  may  also  be  committed  in  a 
church  or  chapel.  If  the  offence  be  committed  in  an  out-house  within  the  cur- 
tilage, it  should  be  laid  to  have  been  committed  in  the  dwelling-house  or  in  a 
stable,  &c.,  being  part  of  the  dwelling-house.  Dobb's  ease,  East,  P.  C.  513; 
Garland's  case,  lb.  493. 

(e)  It  should  be  alleged  or  implied  that  some  one  resided  in  the  house.  For- 
syth V.  State,  6  Ham.  22.  If  a  mere  intent  to  steal  be  alleged,  the  ownership 
should  still  be  correctly  averred.  Stark.  C.  P.  215  ;  Wli.  C.  L.  §  1607.  Even 
the  first  names  of  the  owners  must  be  pi-oved  as  laid.  Doan  v.  State,  26  Ind. 
495.  But  the  name  of  the  owner  of  the  goods  intended  to  be  stolen  need  not 
be  averred.     State  v.  Momssey,  22  Iowa,  158. 

(/)  These  words  are  essential  (Lewis'  C.  L.  139  ;  Hale's  P.  C.  (by  Stokes 
&  Ing.)  549;  Wh.  C.  L.  §  400);  and  so  are  the  words  "  dwelHng-house  "  and 
"  in  the  night."     The  means  of  breaking  and  entering  are  imma,terial. 

349 


(368)  OFFENCES   AGAINST  PROPERTT. 

glariousIy(/^)  did  break  and  enteT,{f^)  with  intent(^)  the  goods 
and  chattels  of  the  said  C.  T).{g^)  in  the  said  dwelling-house  then 
and  there  being,  then  and  there  feloniously  and  burglariously  to 
steal, (7i)  take,  and  carry  away ;  and  one  gold  watch  of  the  value 
of  thirty  doIlars,(i)  of  the  goods  and  chattels  of  the  said  C. 
D;{j)  in  the  said  dwelling-house  then  and  there  being  found, 
then  and  there  feloniously  and  burglariously  did  steal,  take,  and 
carry  away,  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(368)  Burglary  and  larceny  at  common  law.     Another  form.(Je) 

That  J.  B.,  late,  &c.,  on,  &c.,  about  the  hour  of  eleven  in  the 
night  of  the  same  day,  at,  &c.,  the  dwelling-house  of  I.  H.  Jr., 

(/>)  This  is  necessary.     Wh.  C.  L.  §§  402,  1607. 

(/2)  See  Wh.  C.  L.  §  1607. 

{g)  The  intention  is  included  in  the  words  "  feloniously  and  burglariously," 
&c.,  but  it  must  be  further  shown  that  the  breaking  and  entering  was  done  to  com- 
mit a  felony,  which  felony  should  be  specified.  But  an  averment  that  he  did 
then  and  there  commit  a  specific  felony  is  a  sufficient  averment  of  the  intention. 
Com.  V.  Brown,  3  Rawle,  207.  It  is,  however,  prudent  in  all  cases  specially  to 
aver  the  intention,  since  if  the  proof  of  the  commission  of  the  felony  fail,  the  de- 
fendant must  otherwise  be  acquitted.  Wh.  C.  L.  §§  1607-1620  A  statutable 
felony  will  support  the  indictment.  1  Hawk.  c.  38,  s.  38 ;  R.  r.  Knight  and  Rof- 
frey,  East,  P.  C.  510. 

(gfi)  See  Doan  v.  State,  26  Ind.  495,  ante,  note  (e). 

(/i)  Unless  the  commission  of  a  felony  be  actually  laid,  this  is  essential.  R.  r. 
Lyon,  Leach  221,  3d  ed.;  Wh.  C.  L.  §§  1607-1620. 

(i)  Describe  the  character  and  value  of  each  article  according  to  the  fact,  as 
in  larceny.     See  Wh.  C.  L.  §§  353-363. 

(»  The  ownership  must  be  con-ectly  stated.  Wh.  C.  L.  §§  1577,  1607-1620; 
Stark.  C.  P.  210,  215. 

(k)  Com.  V.  Brown,  3  Rawle,  207.  Sentence  was  passed  on  this  indictment 
in  the  Supreme  Court.  "  The  motion  in  arrest  of  judgment,"  said  Gibson,  C.  J., 
"  is  founded  on  the  absence  of  a  direct  averment  that  the  breaking  and  entering 
was  with  a  felonious  intent,  and  although  a  larceny  is  charged  to  have  been 
committed  afterwards,  it  is  argued  with  much  theoretic  plausibility,  that  this 
may  have  been  in  pursuance  of  a  design  subsequently  hatched.  It  is  certain 
that  all  material  facts  must  be  positively  charged  instead  of  being  collected  by 
inferences  ;  but  in  this  particular  this  indictment  is  found  to  be  in  strict  accord- 
ance with  the  most  approved  precedents  (Cro.  Cir.  Comp.  203),  and  for  that  rea- 
son this  motion,  also,  must  be  overruled."  In  Cro.  C.  C.  203,  the  passage  in 
brackets  in  the  text,  which  is  plainly  surplusage,  is  omitted.  See  also  3  Chit.  C.  L. 
203.  The  disadvantage  of  this  form  is  that  in  case  the  stealing  is  left  unproved, 
the  defendant  must  be  acquitted  in  tolo.     1  Leach,  708;  3  Chit.  C.  L.  1114. 

350 


BURGLARY.  (370) 

there  situate,  feloniously  and  burglariously  did  break  and  enter 
(and  the  goods  and  chattels,  moneys,  and  property  of  the  said  I. 
H.  Jr.,  in  the  said  dwelling-house  then  and  there  being,  then  and 
there  feloniously  and  burglariously  to  steal,  take,  and  carry  away), 
and  then  and  there  in  the  said  dwelling-house,  &c.,  twenty-eight 
yards  of  Scotch  ingrain  carpet,  of  dark  colors,  of  the  value  of 
thirty  dollars,  &c.,  of  the  goods  and  chattels,  moneys,  and 

property  of  the  said  I.  H.,  Jr.,  in  the  said  dwelling-house  then 
and  there  being  found,  then  and  there  feloniously  and  burglari- 
ously did  steal,  take,  and  carry  away,  contrary,  &c.,  and  against, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

(369)  Second  count.     Receiving  stolen  goods. 

That  the  said  J.  B.,  afterwards,  to  wit,  on,  &c.,  at,  &c,,  the 
goods  and  chattels,  moneys,  and  property  aforesaid,  by  some  ill- 
disposed  person  to  the  jurors  aforesaid  yet  unknown,  then  lately 
before  feloniously  and  burglariously  stolen,  taken,  and  carried 
away,  unlawfully,  unjustly,  and  for  the  sake  of  wicked  gain,  did 
receive  and  have  (the  said  J.  B.  then  and  there  well  knowing  the 
goods  and  chattels,  moneys,  and  property  last  mentioned  to  have 
been  feloniously  and  burglariously  stolen,  taken,  and  carried 
away),  contrary,  &c.,  and  against,  &c.  ( Conclude  as  in  book  1, 
chapter  3.)(A;^) 

(370)  Burglary  at  common  law  with  no  larceny. 

That  A.  B.,  late,  &c.,  on,  &c.,  about  the  hour  of  eleven  in  the 
night  of  the  same  day,  at,  &c.,  the  dwelling-house  of  one  C.  D., 
there  situate,  feloniously  and  burglariously  did  break  and  enter, 
with  intent  the  goods  and  chattels,  moneys,  and  property  of  the 
said  C.  D.,  in  the  said  dwelling-house  then  and  there  being,  then 
and  there  feloniously  and  burglariously  to  steal,  take,  and  carry 
away,  contrary,  &c.,  and  against,  &c.  ■(  Conclude  as  in  book  1, 
chapter  3.) 

On  this  account  Lord  Hale  recommends  the  form  first  given,  on  which  the  defend- 
ant may  be  convicted  of  either  burglary  or  larceny,  or  both.     1  Hale  P.  C.  (ed. 
Stokes  &  Ing.)  559. 
(41)  As  to  the  joinder  of  these  counts,  see  Wh.  C.  L.  §§  414-427. 

351 


(373)  OFFENCES  AGAINST  PROPERTY. 

(371)  Breaking  into  dwelling-house^  not  being  armed^  with  intent  to 
commit  larceny,  under  Massachusetts  statute. 
That  J.  T.,  &C.5  on,  &c.,  at,  &c.,  in  the  night-time  of  said  day, 
with  intent  to  commit  the  crime  of  larceny,  did  break  and  enter 
the  dvvellitig-house  of  one  C.  E.,  there  situate,  said  J.  T.  not 
being  armed,  nor  arming  himself  in  said  house  with  a  dangerous 
weapon,  nor  making  any  assault  upon  any  person  then  being 
lawfully  therein,  against,  &c.,  and  contrary,  &oc.{n)  ( Conclude  as 
in  book  1,  chapter  3.) 

(872)    Ge?ieral  frame  of  indictment  in  New  York.{o) 

That  A.  B.,  late  of,  &c.,  on,  &c.,  with  force  and  arms,  about 
the  hour  of  eleven  in  the  night  of  the  same  day,  at,  &c.  {setting 
forth  the  object  of  the  burglary),  of  one  C.  D,,  there  situate,  feloni- 
ously and  burglariously  did  break  and  enter,  &c.,  with  intent  the 
goods  and  chattels  of  the  said  C.  D.,  in  the  said  then  and 

there  being,  then  and  there  feloniously  and  burglariously  to  steal, 
take,  and  carry  away,  and  (setting  forth  the  articles  taken),  of  the 
goods,  chattels,  and  property  of  the  said  C.  D.,  in  the  said 
then  and  there  being,  then  and  there  feloniously  and  burglariously 
did  steal,  take,  and  carry  away,  to  the  gi-eat  damage  of  the  said 
C.  D.,  against,  &c.,  and  against,  &c.  ( Conclude  as  in  book  1, 
chapter  3.) 

(373)  Burglary  by  breaking  out  of  a  house.(a') 
The  jurors,  &c.,  upon  their  oath  present,  that  C.  D.,  late  of  B.,. 
in  the  County  of  S.,  laborer,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  about  the  hour  of  eleven  of  the  clock  in  the 

(n)  This  indictment  appears  in  TuUy  v.  Com.,  4  Met.  357,  where  the  only 
error  assigned  by  the  learned  and  acute  counsel  who  conducted  the  defence,  was 
that  the  word  "  burglariously  "  was  omitted.  This,  the  court,  however,  deemed 
unnecessary. 

(0)  In  a  late  case  before  the  New  York  Court  of  Appeals,  it  was  held  that  an 
indictment  for  burglary  which  did  not  allege  that  the  breaking  into  the  dwell- 
ing-house was  effected  in  one  of  the  methods  prescribed  by  the  statute  (2  R.  S., 
668,  §  10;  2  Edra.  St.  688),  was  not  good  as  an  indictment  for  burglary  in  the 
Jirst  degree.  That  where  a  defendant  so  indicted  was  convicted  and  sentenced 
as  for  burglary  in  the  first  degree,  for  over  ten  years,  the  judgment  should  be 
reversed  and  a  new  trial  granted.     People  v.  Biu-t,  Albany  L.  J.,  Feb.  4,  1871. 

(a)  Wilmot,  Law  of  Burg. 

352 


BURGLARY.  (374) 

night  of  the  same  day,  with  force  and  arms,  at  B.  aforesaid,  in 
the  county  aforesaid,  being  in  the  dwelling-house  of  E.  F.,  there 
situate,  one  watch,  of  the  value  of  one  hundred  dollars,  six  table- 
spoons, of  the  value  of  four  dollars  each,  and  twelve  teaspoons, 
of  the  value  of  two  dollars  each,  of  the  goods  and  chattels  of 
one  J.  N.,  in  the  same  dwelling-house  then  and  there  being  found, 
then  and  there  feloniously  did  steal,  take,  and  carry  away.  And 
that  the  said  C.  D.,  being  so  as  aforesaid  in  the  said  dwelling- 
house,  and  having  so  committed  the  felony  aforesaid,  in  manner 
and  form  aforesaid,  therein  afterwards,  to  wit,  about  the  hour  of 
twelve  of  the  clock  in  the  night  of  the  same  day,  with  force  and 
arms,  at  B.  aforesaid,  in  the  county  aforesaid,  feloniously  and 
burglariously  did  break  out  of  the  same  dwelling-house.  And 
the  same  goods  and  chattels  then  and  there  feloniously  and  bur- 
glariously did  steal,  take,  and  carry  away,  contrary  to  the  form 
of  the  statute,  &c.,  and  against  the  peace,  &c. 

(374)  Burglary  and  larceny^  and  assault  with  intent  to  murder. 

The  jurors,  &c.,  upon  their  oath  present,  that  C.  D.,  late  of  B., 
in  the  county  of  S.,  laborer,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  about  the  hour  of  ten  of  the  clock  in  the  night 

of  the  same  day,  with  force  and  arms,  at  B.  aforesaid,  in  the 
county  aforesaid,  the  dwelling-house  of  one  J.  N.,  there  situate, 
feloniously  and  burglariously  did  break  and  enter,  with  intent  the 
goods  and  chattels  of  one  R.  O.,  in  the  said  dwelling-house  then 
and  there  being,  then  and  there  feloniously  and  burglariously  to 
steal,  take,  and  carry  away,  and  then  and  there  in  the  said  dwell- 
ing-house, two  candlesticks,  of  the  value  of  three  dollars  each, 
one  silver  tankard,  of  the  value  of  fifty  dollars,  and  one  silver 
pitcher,  of  the  value  of  one  hundred  dollars,  of  the  goods  and 
chattels  of  the  said  R.  O.,  in  the  said  dwelling-house  then  and 
there  being  found,  then  and  there  feloniously  and  burglariously 
did  steal,  take,  and  carry  away.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  the  said  C.  D,,  then 
and  there,  in  the  said  dwelling-house  then  being,  upon  the  day 
and  at  the  hour  aforesaid,  in  and  upon  the  said  J.  N.,  in  the  said 
dwelling-house  then  and  there  being,  unlawfully,  maliciously, 
and  feloniously  did  make  an  assault,  with  intent  the  said  J.  N. 
then   and  there  feloniously,  wilfully,  and  of   his  malice  afore- 

VOLI.  — 23  353 


(376)  OFFENCES  AGAINST  PROPERTY. 

thought,  to  kill  and  murder,  against  the  peace,  &c.,  and  contrary 
to  the  form  of  the  statute  in  such  case,  &c. 

(375)  Burglary,  with  violence.(b') 

The  jurors,  &c.,  upon  their  oath  present,  that  C.  D.,  late  of  B., 
in  the  County  of  S.,  laborer,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  about  the  hour  of  eleven  of  the  clock  in  the 

night  of  the  same  day,  with  force  and  arms,  at  B.  aforesaid,  in 
the  county  aforesaid,  the  dwelling-house  of  one  J.  N.,  there  sit- 
uate, feloniously  and  burglariously  did  break  and  enter,  with 
intent  to  commit  felony,  and  that  the  said  C.  D.,  in  the  said 
dwelling-house  then  being,  in  and  upon  the  said  J.  N.,  in  the  said 
dwelling-house  then  being,  then  and  there  unlawfully,  mali- 
ciously, and  feloniously  did  make  an  assault,  and  the  said  J.  N., 
in  and  upon  the  right  thigh  of  the  said  J.  N.,  then  and  there  un- 
lawfully, maliciously,  and  feloniously  did  stab,  cut,  and  wound,(c) 
with  intent  to  do  unto  the  said  J.  N.  some  grievous  bodily  harm,{d) 
contrary  to  the  form  of  the  statute  in  such  cases  made  and  pro- 
vided, and  against  the  peace,  &c. 

(376)  Burglary  and  rape.(/) 

The  jurors,  &c.,  upon  their  oath  present,  that  John  Bell,  late 
of  B.,  in  the  County  of  S.,  laborer,  on  the  first  day  of  June,  in 
the  year  of  our  Lord  about  the  hour  of  twelve  of  the  clock 

in  the  night  of  the  same  day,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  the  dwelling-house  of  one  Edward 
Styles,  there  situate,  feloniously  and  burglariously  did  break  and 
enter,  with  intent  to  commit  felony,  and  then  and  there  upon  one 
Lucy  Styles,  the  wife  of  the  said  Edward  Styles,  violently  and 
feloniously  did  make  an  assault,  and  the  said  Lucy  Styles  then 
and  there  violently,  and  against  her  will,  feloniously  did  ravish 

(fe)  Wilmot,  Law  of  Burg. 

(c)  It  is  not  necessary  to  state  the  instrument  or  means  by  ■which  the  injury 
was  inflicted.     Rex  v.  Bi-iggs,  1  Moody,  C.  C.  318. 

(d)  "  The  intent  is  here  inserted,"  says  Wilmot  (Law  of  Burglary,  p.  240, 
note  (a),)  "  in  order  that  if  the  burglary  should  fail,  the  prisoner  might  still  be 
found  guilty  of  felony,  under  the  fourth  section  of  7  Wm.  IV.  and  1  Vict.  ch.  85." 

(e)  On  this  count,  if  the  evidence  of  actual  rape  should  fail,  but  the  jury 
should  be  satisfied  of  the  intent,  the  defendant  could  be  convicted  of  burglary. 

354 


BURGLARY.  (378) 

and  carnally  know,  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace,  &c. 

(377)  Burglary   iviih  intent  to  ravish :  with  a  count  for  burglary 
with  violence^  under  St.  7  Wni.  IV,  and  1  Vict.  ch.  86,  s.  2.(/) 

The  jurors,  &c.,  upon  their  oath  present,  that  John  Clarke,  late 
of  B.,  in  the  County  of  S.,  laborer,  on  the  eighth  day  of  May,  in 
the  year  of  our  Lord  about  the  hour  of  twelve  in  the  night 

of  the  same  day,  with  force  and  arms,  at  B.  aforesaid,  in  the 
county  aforesaid,  the  dwelling-house  of  one  James  Thompson, 
there  situate,  feloniously  and  burglariously  did  break  and  enter, 
with  intent  one  Hannah  Thompson,  the  wife  of  the  said  James 
Thompson,  violently,  and  against  her  will,  feloniously  to  ravish 
and  carnally  know,  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace,  &c. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
pfesent,  that  the  said  John  Clarke,  on  the  day  and  year  aforesaid, 
at  B.  aforesaid,  in  the  county  aforesaid,  having  so  burglariously 
as  aforesaid  broken  and  entered  the  said  dwelling-house  of  the 
said  James  Thompson,  then  and  there  upon  the  said  Hannah 
Thompson,  in  the  said  dwelling-house  then  and  there  being,  wil- 
fully, unlawfully,  and  maliciously  did  make  an  assault,  and  the 
said  Hannah  Thompson  then  and  there  did  strike  and  beat,  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace,  &c. 

(378)  Burglary  and  larceny.,   at  common  law.,  hy  breaking  into  a 

parish  church.(^g^ 

The  jurors,  &c.,  on  their  oath  present,  that  Michael  Wilson, 
late  of  B.,  in  the  County  of  S.,  laborer,  on  the  first  day  of  June, 
in  the  year  of  our  Lord  about  the  hour  of  one  of  the  clock 

in  the  night  of  the  same  day,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  a  certain  church  there  situate,  that 
is  to  say,  the  parish  church  of  B.  aforesaid,  feloniously  and  bur- 
glariously did  break  and  enter,  and  one  pair  of  candlesticks,  of 
the  value  of  twenty  dollars,  and  one  communion  dish,  of  the 
value  of  fifty  dollars,  of  the  goods  and  chattels  of  Henry  Jack- 
son and  others,  being  parishioners  of  B.  as  aforesaid,  in  the  said 
(/")  Wilmot,  Law  of  Burg.  (^)  Wilmot,  Law  of  Burg. 

355 


(380)  OFFENCES  AGAINST  PROPERTY. 

church  then  and  there  being  found,  then  and  there  feloniously 
and  burglariously  did  steal,  take,  and  carry  away,  against  the 
peace,  &c. 

(379)  Burglary  and  larceny.     Breaking  and  entering  a  store  and 

stealing  goods,  under  Ohio  statute. 

That  A.  B.,  on  the  eleventh  day  of  October,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty,  in  the  night  season, 
to  wit,  about  the  hour  of  eleven  in  the  night  of  the  same  day, 
in  the  County  of  Logan  aforesaid,  into  the  storehouse  there  sit- 
uate of  William  S.  Keller,  Jacob  Keller,  Joshua  M.  Keller,  and 
Joseph  A.  Keller,  partners,  trading  under  the  name  and  firm  of 
"  William  S.  Keller  &  Brothers,"  wilfully,  maliciously,  forcibly, 
feloniously,  and  burglariously  did  break  and  enter,  with  intent 
then  and  there  the  goods,  chattels,  and  valuable  property  of  the 
said  William  S.  Keller,  Jacob  Keller,  Joshua  M.  Keller,  Joseph 
A.  Keller,  partners  as  aforesaid,  under  the  name  and  firm  of 
"  William  S.  Keller  &  Brothers,"  in  the  said  storehouse  then  and 
there  being,  then  and  there  feloniously,  wilfully,  and  burglariously 
to  steal,  take,  and  carry  away ;  and  then  and  there,  in  the  said 
storehouse,  three  yards  of  cassinette,  of  the  value  of  three  dollars, 
of  the  goods  and  chattels  of  the  said  William  S.  Keller,  Jacob 
Keller,  Joshua  M.  Keller,  and  Joseph  A.  Keller,  partners  as  afore- 
said, under  the  name  and  firm  of  "  William  S.  Keller  &  Brothers," 
in  said  storehouse  then  and  there  being  found,  then  and  there 
feloniously  and  burglariously  did  steal,  take,  and  carry  away. 
[Conclude  as  in  book  1,  chapter  3.)(7i) 

(380)  Burglary  and  larceny.  Breaking  and  entering  a  meeting-house^ 
and  stealing  a  communion  cup  and  chalice,  under  Ohio  statute. 

That  A.  B,,  on  the  sixth  day  of  August,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty-two,  at  about  the  hour 
of  eleven  in  the  night  season  of  the  same  day,  at  the  township  of 
in  the  County  of  Cuyahoga  aforesaid,  a  certain  meeting- 
house there  situate  and  being,  called  the  Saint  John's  Cathedral, 
wilfully,  maliciously,  forcibly,  and  burglariously  did  break  and 
enter  into,  with  intent  the  goods,  chattels,  and  property  of  M.  N., 
of  great  value,  in  said  meeting-house  then  and  there  being,  felo- 
(/<)  Warren's  C.  L.  122. 

356 


BDKGLARY.  (382) 

niously  and  burglariously  to  steal,  take,  and  carry  away ;  and 
then  and  there,  in  the  said  meeting-house,  one  chalice,  of  the 
value  pf  sixty  dollars,  and  one  communion  cup,  of  the  value  of 
sixty  dollars,  of  the  personal  goods  and  chattels,  and  property  of 
said  M.  N.,  in  the  said  meeting-house  then  and  there  being 
found,  feloniously  and  burglariously  did  steal,  take,  and  carry 
away.     {Conclude  as  in  book  1,  chapter  3.)(i) 

(381)  Burglary.     Breaking  and  entering  a  storehouse  with  intent  to 

steal,  under  Ohio  statute. 

That  A.  B.,  on  the  ninth  day  of  February,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty-four,  in  the  night 
season  of  the  same  day,  to  wit,  about  the  hour  of  one  at  night, 
in  the  County  of  Hamilton  aforesaid,  into  a  certain  storehouse 
of  one  Isaac  Smith,  there  situate  and  being,  did  wilfully,  mali- 
ciously, burglariously,  and  forcibly  break  and  enter,  with  intent 
then  and  there  and  thereby  feloniously  and  burglariously  to  steal, 
take,  and  carry  away  the  personal  goods,  chattels,  and  property 
of  the  said  Isaac  Smith  in  the  said  storehouse  then  and  there 
being.     (Conclude,  ^c.)(j) 

(382)  Burglary.    Breaking  and  entering  a  shop  with  intent  to  steal, 

under  Ohio  statute. 

That  A.  B.  and  C.  D.,  otherwise  called  E.  F.,  on  the  twenty- 
eighth  day  of  January,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  fifty-two,  in  the  night  season  of  the  same  day,  to 
wit,  about  the  hour  of  one  at  night,  at  the  County  of  Hamilton 
aforesaid,  into  a  certain  shop  of  Joseph  Shipley  and  Hawes  Reed, 
there  situate  and  being,  did  wilfully,  maliciously,  burglariously, 
and  forcibly  break  and  enter,  with  intent  then  and  there  and 
thereby  feloniously  and  burglariously  to  steal,  take,  and  carry 
away  the  personal  goods  and  chattels  and  property  of  the  said 
Joseph  Shipley  and  Hawes  Reed,  in  said  shop  then  and  there 
being.     [Conclude,  Sfc.)[k) 

(i)  Warren's  C.  L.  123.     0')  Warren's  C.  L.  120.     (k)  Warren's  C.  L.  120. 

357 


(385)  OFFENCES    AGAINST   PROPERTY. 

(383)  Burglary.      Breaking  and  entering   a  dwelling-house   with 

intent  to  steal,  under  Ohio  statute. 
That  A.  B.,  on  the  twenty-first  day  of  May,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty-five,  in  the  night 
season  of  the  same  day,  to  wit,  about  the  hour  of  one  at  night, 
in  the  County  of  Hamilton  aforesaid,  into  a  certain  dwelling- 
house  of  John  M.  Davidson,  there  situate  and  being,  did  wilfully, 
maliciously,  burglariously,  and  forcibly  break  and  enter  into,  with 
intent  then  and  there  and  thereby  the  personal  goods,  chattels, 
property,  and  moneys  of  the  said  John  M.  Davidson,  in  the  said 
dwelling-house  then  and  there  being,  feloniously  and  burglari- 
ously to  steal,  take,  and  carry  away.     ( Conclude^  4*^')(0 

(384)  Breaking  and  entering  a  mansion-house  in  the  daytime,  and 
attempting  to  commit  personal  violence,  under  Ohio  statute. 

That  A.  B.,  otherwise  called  C.  D.,  on  the  first  day  of  Novem- 
ber, in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
forty-six,  to  wit,  in  the  daytime  of  said  day,  in  the  County  of 
Hamilton  aforesaid,  a  certain  mansion-house  of  one  M.  N.,  there 
situate,  in  which  said  mansion-house  she  the  said  M.  N.,  then  and 
there  did  reside  and  dwell,  did  unlawfully  and  forcibly  break  open 
and  enter,  and  then  and  there  in  and  upon  the  said  M.  N.,  in  said 
mansion-house  then  and  there  being,  unlawfully  and  forcibly  did 
make  an  assault,  and  her,  the  said  M.  N.,  then  and  there  unlaw- 
fully did  threaten  in  a  menacing  manner,  and  so  the  said  A.  B. 
then  and  there,  in  manner  aforesaid,  in  and  upon  the  said  M. 
N.,  unlawfully  did  attempt  to  commit  personal  violence  and 
abuse.(7n) 

(385)  Breaking  and  entering  a  mansion-house  in  the  night  season, 
and  committing  personal  violence,  under  Ohio  statute. 

That  A.  B.,  on  the  third  day  of  September,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  forty-three,  about  the  hour 
of  nine,  in  the  night  season  of  the  same  day,  in  the  County  of 
Montgomery  aforesaid,  a  certain  mansion-house  there  situate,  in 
which  said  mansion-house  one  M.  N.  did  then  and  there  reside 
and  dwell,  unlawfully  and  forcibly  did  break  open  and  enter,  and 
(Z)  Warren's  C.  L.  120.  (m)  Warren's  C.  L.  131. 

358 


BURGLARY.  (388) 

in  and  upon  the  said  M.  N.,  then  and  there  in  said  mansion  being 
and  residing,  then  and  there  unlawfully  and  forcibly  did  make  an 
assault,  and  her  the  said  M.  N.  did  then  and  there  strike,  beat, 
and  otherwise  ill-treat,  and  in  and  upon  the  said  M.  N.  did  then 
and  there  unlawfully  commit  personal  violence  and  abuse.(w) 

(386)  Against  a  person  for  attempting  to  break  and  enter  a  dwelling- 

house  at  nighty  at  common  law.(oy 

That  J.  O'B.,  late  of,  &c.,  on,  &c.,  at,  &c.,  the  dwelling-house 
of  W.  H.,  there  situate,  about  the  hour  of  twelve  in  the  night- 
time of  the  same  day,  unlawfully  and  wickedly  did  attempt  and 
endeavor  to  break  and  enter,  with  an  intent  the  goods  and  chattels 
of  the  said  W.,  in  the  same  dwelling-house  then  and  there  being, 
feloniously  and  burglariously  to  steal,  take,  and  carry  away,  to 
the  evil  example  of  all  others  in  the  like  case  offending,  and 
against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(387)  Breaking  a  storehouse  with  intent  to  enter  and  steals  at  com- 

mon law.(^p^ 

That  T.  H.,  late  of,  &c.,  on,  &c.,  about  the  hour  of  twelve  in 
the  night-time  of  the  same  day,  at,  &c.,  the  storehouse  of  C.  B., 
there  situate,  unlawfully  and  wickedly  did  break,  with  an  intent 
the  same  storehouse  to  enter,  and  the  goods  and  chattels  of  the 
said  C.  B.,  in  the  same  storehouse  then  and  there  being,  then 
and  there  feloniously  to  steal,  take,  and  carry  away,  contrary,  &c., 
and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(388)  Being  found  by  night   armed^  with  intent  to  break  into  a 

dwelling-house  and  commit  a  felony  therein. 

That  C.  D.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  about  the  hour 

of  eleven  of  the  night  of  the  same  day,  at  B.  aforesaid,  in  the 
county  aforesaid,  was  found  in  the  night-time  as  aforesaid,  then 
and  there  being  armed  with  a  dangerous  weapon,  to  wit,  a  gun, 
with  intent  then  and  there,  in  the  night-time  as  aforesaid,  to 
break  and  enter  the  dwelling-house  of  one  E.  F.,  there  situate, 

(n)  Warren's  C.  L.  131. 

(o)  Drawn  in  1787  by  Mr.  Bradford,  then  attorney-general  of  Pennsylvania. 

iP)  lb. 

359 


(388)  OFFENCES  AGAINST  PROPERTY. 

and  then  and  there,  in  the  night-time  as  aforesaid,  in  the  said 
dwelling-house,  feloniously  to  steal,  take,  and  carry  away  the 
goods  and  chattels  and  personal  property  of  the  said  E.  F., 
in  the  said  dwelling-house  then  and  there  being,  against  the 
peace,  &c. 

360 


ARSON. 


CHAPTER  III. 

AES0N.(7) 

(389)  General  frame  of  an  indictment  for  arson  at  common  law. 

(390)  Burning  unfinished  dwelling-house,  under  Mass.  Rev.  Sts.  ch.  126, 

§5. 

(9)  See  generally  Wh.  C.  L.  as  follows  :  — 
A.  Statutes. 

United  States. 

Ai'son  in  any  fort,  dockyard,  &c.,  §  1621. 

Burning  any  armory,  arsenal,  ship-house,  &c.,  not  parcel  of  dwell- 
ing-house, or  timber,  stores,  &c.,  §  1622. 
Burning  any  vessel,  &c.,  §  1623. 

Burning  any  vessel  with  intent  to  prejudice  underwriters,  §  1624. 
Massachusetts. 

Arson  generally,  §  1626. 

Burning  in  daytime,  dwelling-house,  &c.,  §  1627. 

Burning  in  night-time,  dwelling-house,  court-house,  store,  mill,  &c., 

§  1628. 
Same  in  daytime,  §  1629. 
Burning  in  day  or  night,  banking  or  ware  houses,  stores,  stables, 

&c.,  of  a  particular  class,  §  1630. 
Burning  piles  of  wood,  fence,  hay-stack,  vegetable  produce,  &c., 

§  1631. 
Married   woman    responsible,   burning  her  husband's   property, 

§  1632. 
Burning  witb  intent  to  defraud  underwriters,  §  1633. 
New  York. 

Arson  in  first  degree,  §  1634. 
Ibid,  second  degree,  §  1636. 
Ibid,  third  degree,  §  1637. 
Ibid,  fourth  degree,  §  1638. 
Punishment,  §  1639. 
Pennsylvania. 

Arson,  dwelling-house,  barn,  out-house,  &c.,  §  1640. 

Burning  State-house,  &c.,  church,  &c.,  meeting-house,  or  library, 

§  1641. 
Punishment,  §  1642. 
Firing  barn,  stable,  rick  of  hay,  &c.,  out-house,  &c.,  with  intent  to 

destroy  same,  §  1643. 

361 


OFFENCES  AGAINST  PROPERTY. 

(391)  Setting  fire  to  a  building,  whereby  a  dwelling-house  was  burnt  in 

the  night-time.     Mass.  Stat.  1852,  ch.  259,  §  3. 

(392)  Burning  a  dwelling-house  in  the  daytime.      Rev.  Sts.  of  Mass.  ch. 

126,  §  2. 

(393)  Setting  fire  to  a  building  adjoining  a  dwelling-house  in  the  day- 

time, whereby  a  dwelling-house  was  burnt  in  the  daytime.   Rev. 
Sts.  of  Mass.  ch.  126,  §  2. 

(394)  Burning  a  stable  within  the  curtilage  of  a  dwelling-house.     Rev. 

Sts.  of  Mass.  ch.  126,  §  3. 

(395)  Burning  a  city  hall  in  the  night-time.     Rev.  Sts.  of  Mass.  ch.  126, 

§3. 

(396)  Burning  a  meeting-house  in  the  daytime.      Rev.  Sts.  of  Mass.  ch. 

126,  §  4. 

(397)  Burning  a  vessel  lying  within  the  body  of  the  county.     Rev.  Sts. 

of  Mass.  ch.  125,  §  5. 

(398)  Burning  a  dwelling-house  with  intent  to  injure  an  insurance  com- 

pany.    Rev.  Sts.  of  Mass.  ch.  126,  §  8. 

(399)  Setting  fire  to  stacks  of  hay.     Rev.  Sts.  of  Mass.  ch.  126,  §  6. 

(400)  Burning  a  dwelling-house  in  the  night-time.    Mass.  Stat.  1852,  ch. 

259,  §  3. 

(401)  Burning  a  flouring  mill,  under  Ohio  statute. 

(402)  Burning  a  dwelling-house,  under  Ohio  statute. 

(403)  Burning  a  boat,  under  Ohio  statute. 

(404)  Attempt  to  commit  arson.      Setting  fire  to  a  store,  under  Ohio 

statute. 

(^Analysis  of  Arson  in  Wh.  C.  Z.) 
Punishment,  §  1644. 
Firing  bridge,  &c.,  §  1645. 

Burning  dwelling-house,  kitchen,  store,  &c.,  factory,  or  other  build- 
ing, or  pile  of  boards,  &c.,  §  1646. 
Setting  fire  to  same,  with  intent  to  burn,  §  1647. 
Punishment,  &c.,  §  1648. 
Virginia. 

Arson  generally,  §  1649. 
Burnfng  in  daytime,  §  1650. 
What  is  dwelling-house,  §  1651. 

Burning;  meetinsr-house,  coUes-e,  bankinsr-house,  mill,  &c.,  S  1652. 
Burning  pile  of  wood,  tobacco-house,  stack  of  wheat,  &c.,  §  1653. 
Punishment,  §  1654. 
Burning  bridge,  lock,  dam,  &c.,  §  1655. 
Setting  fire  to  woods,  &c.,  §  1656. 
Burning  with  intent  to  defraud  underwriter,  §  1657. 
B.  Arson  at  Common  Law. 
I.  Burning,  §  1659. 
II.  Property  burned,  §  1667. 
III.  Indictment,  §  1673. 
362 


ARSON.  (389) 

(405)  Burning  a  stack  of  hay,  under  Ohio  statute. 

(406)  Burning  a  meeting-house,  under  the  Vermont  statute. 

(407)  Burning  one's  own  house,  with  intent  to  defraud  the  insurers. 

(408)  Burning  a  barrack  of  hay,  under  Pennsylvania  statute. 

(409)  Burning  stable,  under  same. 

(389)    Creneral  frame  of  an  indictment  for  arson  at  common  law. (a) 
That  A.  B.,  late,  &c.,  a  certain  house(6)  of  one  C.  D.,(c)  there 

(a)  This  form,  with  a  portion  of  the  notes  to  it,  is  drawn  from  Stark.  C.  P. 
437. 

(V)  This  is  enough.  Wh.  C.  L.  §§  625,  1674.  Arson  might  at  common  law 
be  committed,  not  only  by  burning  the  dwelling-house,  but  also  the  out-houses, 
which  were  parcel  of  the  dwelling-house  (Wh.  C.  L.  §  1667;  1  Hale,  570;  3  Inst. 
67,  69  ;  1  Hawk.  c.  39,  s.  1,  2),  and  it  is  not  necessary  to  allege  the  burning  of 
the  dwelling-house,  but  only  of  the  house  simply.  1  Hale,  567,  570 ;  3  Inst.  67 ; 
1  Hawk.  c.  39,  s.  1.  In  Glanfield's  case  (East,  P.  C.  1034),  it  was  holden  that 
out-houses  generally  was  a  sufficient  description  under  9  Geo.  I.  c.  22,  without 
showing  of  what  kind. 

(c)  The  allegation  of  ownership  is  material,  for  it  must  appear  that  the  offence 
was  committed  against  the  property  of  another,  and  this  allegation  must  be  dis- 
tinctly proved.  See  Wh.  C.  L.  §§  626,  1674 ;  Com.  v.  Wade,  17  Pick.  395  ;  Carter 
V.  State,  20  Wis.  647;  Pedley's  case.  Leach,  277;  Breeme's  case.  Leach,  261; 
Spalding's  case.  Leach,  251  ;  Holmes'  case,  Cro.  Car.  376  ;  3  Inst.  66.  In  the  case 
of  the  Rickmans  (East,  P.  C.  1034),  the  defendants  were  charged  with  the  arson 
of  a  certain  house,  situate  in  the  Parish  of  Ellingham,  &c.,  and,  after  conviction, 
all  the  judges  held  that  the  conviction  was  wrong,  because  the  indictment  did 
not  state  the  ownership.  It  appeared  in  that  case  that  the  house  belonged  to 
the  parish,  and  that  they  suffered  one  Thomas  Early  to  live  in  it,  but  in  whom 
the  legal  estate  was  vested  was  unknown ;  and  the  judges  held,  that  it  might 
have  been  laid  to  be  the  property  of  the  overseers,  or  of  persons  unknown. 
Where  there  is  a  doubt  in  which  of  several  persons  the  property  vests,  it  should 
be  differently  described  in  different  counts,  in  order  to  obviate  any  objection  on 
the  score  of  variance.  If  the  occupation  be  merely  permissive,  as  by  a  pauper, 
of  a  house  belonging  to  the  parish,  the  property  cannot  be  laid  in  him;  vide 
supra,  Rickmans'  case;  and  if  such  pauper  or  mere  servant  burn  the  house  which 
he  inhabits,  even  exclusively,  he  is  guilty  of  arson.  Gowen's  case,  East,  P.  C. 
1027.  Otherwise,  if  the  defendant  has  possession  under  a  lease  for  years 
(Holmes'  case,  Cro.  Car.  376;  3  Inst.  66;  1  Hale,  568;  Breeme's  case.  Leach, 
261  ;  Pedley's  case.  Leach,  277),  or  as  mortgagor.  Spalding's  case.  Leach,  258. 
But  it  seems  that  if  the  mere  reversion  be  in  tue  defendant,  who  has  not  pos- 
session, he  may  be  guilty  of  the  offence,  by  burning  the  house.  Harris'  case, 
Fost.  113;  East,  P.  C.  1023.  In  Spalding's,  Breeme's,  and  Pedley's  cases,  it 
was  holden,  that  in  respect  of  the  property  against  which  the  offence  was  com- 
mitted, the  statute  9  Geo.  I.  c.  22  did  not  alter  the  common  law.  The  offence  is 
against  the  possessions,  and  the  house,  &c.,  should  be  described  as  belonging  to 
the  person  who  has  possession  coupled  with  an  interest ;  for  if  the  occupation  be 

363 


(389)  OFFENCES  AGAINST  PROPERTY. 

situate,  feloniously,  wilfully,  and  maliciously(c^)  did  set  fire  to, 
and  the  same  house  then  and  there,  by  such  firing  as  aforesaid 
merely  permissive,  the  house  ought  not  to  be  described  as  the  occupier's.  See 
Rickmans'  and  Cowen's  cases,  supra.  In  Glanfield's  case  (East,  P.  C.  1034),  it 
appeared  that  the  out-houses  burnt,  including  the  brew-house,  were  the  property 
of  Blanche  Silk,  widow,  as  also  was  the  dwelling-house  in  which  she  lived  with 
her  son,  J.  S.;  that  the  son  also  occupied  the  out-houses,  with  the  exception  of 
the  brew-house,  on  his  own  account,  but  without  any  particular  agreement  with 
his  mother;  that  she  repaired  the  dwelling-house  and  out-houses,  and  that  they 
jointly  contributed  to  the  ingredients  for  the  beer,  which  was  brewed  in  the 
brew-house,  and  which  was  used  in  the  family.  Mr.  J.  Heath  held,  that  the 
brew-house  ought  to  be  laid  as  in  their  joint  occupation,  but  the  other  out- 
houses as  in  the  occupation  of  the  son ;  and  upon  the  indictment  so  drawn,  the 
prisoner  was  convicted  and  executed. 

On  an  indictment  for  setting  fire  to  a  barn  in  the  night-time,  whereby  a 
dwelling-house  was  burned,  charging  the  barn  to  be  the  property  of  G.  and  N., 
it  appeared  that  G.  was  the  general  owner  of  the  barn,  and  that  part  of  it  was 
in  the  occupancy  of  N.,  and  a  part  of  it  used  for  the  purposes  of  a  stage  com- 
pany, who  had  hired  it  from  G.  by  parol  agreement,  for  no  specified  time,  G. 
himself  being  a  member  and  agent  of  the  company,  and  exercising  no  different 
control  over  this  part  of  the  premises  than  he  exercised  over  the  other  way- 
stations  of  the  company.  It  was  held,  that  the  company,  and  not  G.,  was  the 
occupant  of  this  part  of  the  barn ;  and  that  the  allegation  of  the  indictment, 
that  the  properly  was  N.  and  G.'s,  was  not  supported  by  the  proof  Com.  v. 
Wade,  17  Pick.  395. 

A  room  in  a  large  building,  which  room  was  separately  leased  by  the  owner 
of  the  building  to  a  merchant,  who  occupied  it  as  a  store,  and  having  no  direct 
communication  with  the  other  parts  of  the  building,  is  properly  laid  in  the  in- 
dictment for  arson  as  the  property  of  the  lessee.  State  v.  Sandy  (a  slave),  3 
Iredell,  570. 

If  a  man,  by  setting  fire  to  his  own  house,  endanger  others  which  are  con- 
tiguous, he  may  be  indicted  for  the  misdemeanor,  and  it  is  unnecessary  in  such 
case  to  aver  an  intention  to  burn  the  contiguous  houses.  1  Hale  568 ;  Cro.  Car. 
377  ;  Scholfield's  case,  Cald.  397.  But  if  the  defendant  set  fire  to  his  own  house 
with  intent  to  defraud  the  insurers,  and  the  house  of  his  neighbor  be  burnt  in 
consequence,  the  offence  will  amount  to  arson.  Per  Grose,  J.,  in  giving  judg- 
ment in  Probert's  case,  East,  P.  C.  1030. 

"And  in  Isaac's  case,  East,  P.  C.  1031,  where  the  offence  committed  under 

(f  1)  "  The  words  maliciously  and  wilfully  are  descriptive  of  the  offence  as 
ousted  of  clergy  by  the  statute  4  and  5  P.  &  M.  c.  4  ;  but  they  are  no  part  of  the 
description  under  the  statute  9  Geo.  I.  c.  22  ;  though  under  the  latter  statute 
to  oust  the  offender  of  clergy,  it  must  appear  that  the  act  was  wilful  and 
malicious,  and  it  seems  to  be  safer  so  to  aver  it.  See  1  Hale,  5G7,  569  ;  3  Inst. 
67;  East,  P.  C.  1033,  1021,  Minton's  case."  Starkie's  C.  P.  438.  As  to  the 
necessity  of  these  terms,  see  Wh.  C.  L.  §§  625-1673. 
364 


ARSON.  (390) 

feloniously,  wilfully,  and  maliciously  did  burn,(c2)  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(390)  Burning  unfinished  dwelling-house^  under  Mass.  Rev.   Sts. 

ch.  126,  §  5.((i) 
That  on,  &c.,  at,  &c.,  about  the  hour  of  twelve  o'clock  in  the 
night-time  of  the  same  day,  a  building  of  one  P.  U.,  of,  &c.,  there 
situate,  erected  by  the  said  P.  U.  for  a  dwelling-house,  and  not 
completed  or  inhabited,  feloniously,  wilfully,  and  maliciously  did 
set  fire  to,  and  the  same  building,  so  erected  for  a  dwelling-house, 
then  and  there,  by  the  setting  and  kindling  of  such  fire,  did  un- 
lawfully, wilfully,  and  maliciously  burn  and  consume,  against, 
&c.,  and  contrary,  &c.     [Conclude  as  in  book  1,  chapter  3.)(/)' 

such  circumstances  was  laid  as  a  misdemeanor,  Buller,  J.,  directed  an  acquittal 
on  the  ground  that  the  misdemeanor  merged  in  the  felony.  And  if  the  de- 
fendant set  fire  to  his  own  house  with  intent  to  burn  his  neighbor's  house,  and 
the  latter  be  burnt  in  consequence,  the  offence  is  as  much  arson  as  if  the  de- 
fendant had  immediately  set  fire  to  his  neighbor's  house;  therefore  if  A.,  in- 
tending to  burn  B.'s  house,  set  fire  to  his  own,  and  B.'s  is  burnt  in  consequence, 
the  indictment  may  charge  A.  directly  with  the  wilful  and  malicious  burning  of 
B.'s  house."     1  Hale,  569  ;  East,  P.  C.  1034. 

(f;"^)  "  Burn  "  is  essential.     Mary  v.  State,  24  Ark.  44. 

{d)  Com.  V.  Squire,  1  Met.  258.  This  was  objected  to,  because  there  was  no 
averment  that  the  building  alleged  to  have  been  burnt  was  other  than  that  men- 
tioned in  Rev.  Stat.  ch.  126,  §  5.  The  court  held,  however,  that  this  was  not 
necessary,  and  further,  that  there  was  no  insensibility  in  "  a  building  erected  " 
being  unfinished.  The  word  "  feloniously,"  which  was  part  of  the  indictment, 
but  which  is  omitted  in  the  text,  was  rejected  as  surplusage. 

(/)  Com.  V.  Squire,  1  Met.  258.  Under  this  indictment  the  coui-t  said  :  "The 
only  remaining  question  to  be  considered  is,  whether  the  offence  is  so  charged 
in  this  indictment,  that  after  a  conviction  or  acquittal  thereon  it  will  protect 
the  defendant  against  a  second  indictment  for  the  same  act,  supposing  the  flicts 
would  have  warranted  originally  an  indictment  for  the  offence  of  the  higher 
degree,  embraced  in  the  third  section.  The  difficulty  here  supposed  also  arises 
from  not  stating  in  the  indictment  the  exception  contained  in  the  fifth  section. 
It  does  not  seem  to  us,  that  the  security  of  the  party  against  being  again  charged 
for  the  same  act,  necessarily  requires  the  form  of  the  indictment  to  be  such  as  is 
suggested  by  the  defendant's  counsel.  Upon  this  point,  also,  some  aid  may  be 
derived  from  considering  the  course  of  proceeding  in  prosecutions  for  larcenies. 
Larcenies,  by  our  statute,  are  of  various  grades,  and  are  punished  with  greater 
or  less  severity,  according  to  the  aggravation  of  the  offence  ;  and  these  different 
gi-ades  of  offence  are  punished  under  the  provisions  contained  in  different 
and  distinct  sections  of  the  statute.  But  we  know  very  well  that  in  larcenies 
indictments  are  often  found,  charging  the  inferior  grade  of  crimes,  and  omitting 

365 


(391)  OFFENCES   AGAINST   PEOPERTY. 


I 


(391)  For  setting  fire  to  a  building^  whereby  a  dwelling-house  was 
burnt  in  the  night-time.     Mass.  Stat.  1852,  ch.  259,  §  3. 
That  C.  D.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  in  the  night-time  of 

said  day,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  a  certain  building,  to  wit,  a  barn,  of  one  E.  F.,(a)  there 

the  circumstances  of  aggravation,  when  all  the  facts  existing  in  the  case  would, 
if  disclosed  to  the  jury,  bring  the  case  within  the  higher  grade  of  larcenies. 
Would  it  be  a  defence  to  such  indictment,  on  the  trial  before  the  petit  jury, 
that  the  defendant  had  committed  the  offence  charged,  but  with  certain  aggravat- 
ing circumstances  not  charged.  It  seems  to  us  not ;  and  that  when  the  offence 
charged  in  the  indictment,  and  the  offence  actually  committed,  are  both  merely 
larcenies,  the  greater  offence  includes  the  less,  and  evidence  proving  the 
greater  offence  will  support  an  indictment  for  the  smaller  offence.  Such  being 
the  case,  it  would  seem  necessarily  to  follow,  that  the  conviction  or  acquittal  of 
a  party  thus  charged  with  the  minor  larceny  must  be  a  bar  to  a  subsequent  in-  . 
dictment  charging  the  same  larceny  with  aggravating  circumstances.  The  same 
rule  would  seem  properly  to  apply  to  the  different  gradations  of  offences,  of 
maliciously  burning  buildings,  as  provided  for  in  the  third  and  fifth  sections  of 
the  Rev.  Stat.  ch.  126,  which  is  also  the  same  statute  in  which  there  are  created 
four  distinct  o-i-ades  of  larcenies,  with  different  punishments  annexed  to  them. 
The  offences  made  punishable  by  the  third  and  fifth  sections  are  both  only  mis- 
demeanors, and  the  same  courts  have  jurisdiction  of  each.  There  would  be  but 
one  criminal  act  in  the  malicious  burning  of  a  building,  whether  that  building 
alone  was  consumed,  or  it  occasioned  the  burning  of  any  building  described  in 
the  third  section.  Taking  the  case  imder  those  limitations,  we  think  if  the  gov- 
ernment proceed  by  an  indictment  for  the  smaller  offence,  and  on  trial  thereof 
there  be  a  judgment  of  conviction  or  acquittal,  such  judgment  would  be  a  legal 
bar  to  a  second  indictment  charging  the  same  offence  with  aggravation.  State 
V.  Cooper,'!  Green,  362.  Upon  the  whole  matter  we  are  therefore  brought  to 
the  conclusion,  that  this  indictment  does  set  forth  the  burning  of  such  a  build- 
ino-  as  is  described  in  the  statute ;  that  as  the  facts  stated  in  the  indictment 
constitute  a  misdemeanor  and  not  a  felony,  tlie  offence  is  well  charged  in  the  in- 
dictment as  a  misdemeanor ;  and  if  the  word  feloniously  be  rejected  as  surplusage, 
as  we  think  it  maybe,  that  the  indictment  is  sufficiently  particular  in  its  form  of 
charging  the  offence  to  be  punished  ;  and  finally,  that  a  conviction  or  acquittal 
on  this  indictment  would  be  a  good  bar  to  a  second  indictment  for  the  same  act, 
alleging  it  with  the  aggravating  circumstances  described  in  the  third  section  of 
the  statute.  The  result  therefore  is,  that  the  motion  in  arrest  of  judgment  must 
be  overruled,  and  the  punishment  awarded  against  the  defendant  which  is 
prescribed  by  law  in  such  cases." 

(a)  In  the  case  of  Commonwealth  v.  Wade  (17  Pickering,  .39.'),  183.5),  which  was 
an  indictment  under  stat.  1804,  ch.  131,  it  was  queried  whether  it  was  necessary 
to  allege  who  was  the  owner  or  occupant  of  such  building,  or  whether  it  was  the 

366 


ARSON.  (393) 

situate,  feloniously,  wilfully,  and  maliciously  did  set  fire  to,  and 
by  the  kindling  of  said  fire,  and  by  the  burning  of  said  building, 
the  dwelling-house  of  the  said  E.  F.,  there  situate,  was  then  and 
there  in  the  night-time  of  said  day,  feloniously,  wilfully,  and 
maliciously  burnt  and  consumed  ;  against  the  peace  of  said  com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided.(6) 

(392)  For  burning  a  dwelling-house  in  the  daytime.     Rev.  Sis.  of 

Mass.  ch.  126,  §  2.(c) 

That  C.  D.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the  first 
day  of  June,   in  the  year  of  our  Lord  in  the  daytime  of 

said  day,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  the  dwelling-house  of  one  E.  F.,  there  situate,  feloni- 
ously, wilfully,  and  maliciously  did  burn  and  consume;  against 
the  peace  of  said  commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. (c?) 

(393)  For  setting  fire  to  a  building  adjoining  a  dwelling-house  in 
the  daytime,  whereby  a  dwelling-house  was  burnt  in  the  day- 
time.    Rev.  Sts.  of  Mass.  ch.  126,  §  2. 

That  C.  D.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  in  the  daytime  of 

said  day,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  a  certain  building,  to  wit,  a  wood-house,  of  one  A.  B., 
there  situate,  and  adjoining  to  the  dwelling-house  of  the  said  A. 
B.,  there  situate,  feloniously,  wilfully,  and  maliciously  did  set  fire 
to;  and  by  the  kindling  of  said  fire  and  the  burning  of  said  build- 
ing, the  said  dwelling-house  of  the  said  A.  B.  was  then  and  there, 
in  the  daytime,  feloniously,  wilfully,  and  maliciously  burnt  and 

building  of  another.  But  if  the  allegation  is  made,  being  descriptive  of  the 
offence,  it  must  be  strictly  proved.  Two  indictments  charging  the  defendant 
•with  setting  fire  to  a  barn,  whereby  a  dwelling-house  was  burnt  in  the  night,  one 
alleging  it  to  be  the  barn  of  A.  and  B.,  the  other  alleging  it  to  be  the  barn  of 
A.  and  C.,were  held  not  to  be  for  the  same  offence.  Commonwealth  v.  Wade,  1 7 
Pick.  395  ;  Tr.  &  H.  Free.  33.  (h)  Tr.  &  H.  Free.  33. 

(c)  If  the  fire  was  set  to  a  building  adjoining  the  dwelling-house,  the  allega- 
tions in  indictments  upon  this  section  will  be  conformable  to  the  facts  in  the 
case,  and  set  forth  as  in  the  preceding  precedent.     Tr.  &  H.  Free.  33. 

id)  Tr.  &  H.  Free.  34. 

367 


(396)  OFFENCES   AGAINST   PllOPERTY. 

consumed;  against  the  peace  of  said  commonwealth,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, (e) 

(394)  For  burning  a  stable  within  the  curtilage  of  a  dwelling-house. 

Rev.  Sts.  of  Mass.  ch.  126,  §  3.(/) 

That  C.  D.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  in  the  night-time  of 

said  day,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  feloniously,  wilfully,  and  maliciously  did  set  fire  to  a 
certain  stable  of  one  A.  B.  there  situate,  and  then  and  there 
being  within  the  curtilage  of  the  dwelling-house  of  the  said  A. 
B.  there  situate,  and  by  the  kindling  of  such  fire,  the  aforesaid 
stable  there  situate,  and  then  and  there  being  within  the  curtilage 
of  said  dwelling-house  as  aforesaid,  was  then  and  there,  in  the 
night-time,  wilfully  and  maliciously  burnt  and  consumed ;  against 
the  peace  of  said  commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. (^) 

(395)  For  burning  a  city  hall  in  the  night-time.     Rev  Sts.  of  Mass. 

ch.  126,  §  3. 
That  C.  D.,  late  of  W.,  in  the  County  of  W.,  yeoman,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  in  the  night-time 

of  said  day,  with  force  and  arms,  at  W.,  in  the  County  of  W., 
the  city  hall  of  the  City  of  W.,  in  the  County  of  W.  aforesaid, 
there  situate  and  erected  for  public  use,  to  wit,  the  transaction 
of  the  municipal  business  of  said  City  of  W.,  then  and  there, 
in  the  night-time  of  said  day,  feloniously,  wilfully,  and  mali- 
ciously did  burn  and  consume ;  against  the  peace  of  said  com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. (A) 

(396)  For  burning  a  meeting-house  in  the  daytime.     Rev.  Sts.  of 

Mass.  ch.  126,  §  4. 
That  C.  D.,  late  of  R,  in  the  County  of  M.,  laborer,  on  the 
(e)  Tr.  &  H.  Tree.  34. 

(/)  This  form  may  be  adopted  for  tlie  malicious  burning,  in  the  night-time,  of 
any  other  building  mentioned  in  the  latter  part  of  the  third  section  of  the  statute, 
describing  the  building  in  the  identical  words  of  the  statute.    Tr.  &  II  .Free.  34. 
{g)  Tr.  &  H.  Free.  34.  Qi)  Tr.  &  H.  Free.  84. 

368 


ARSof.  (398) 

first  clay  of  June,  in  the  year  of  our  Lord  in  the  daytime 

of  said  day,  with  force  and  arms,  at  F.  aforesaid,  in  the  county 
aforesaid,  a  certain  meeting-house,  there  situate,  of  the  property 
of  the  First  Baptist  Society  in  Framingham,  in  said  county,  and 
erected  for  public  use,  to  wit,  for  the  public  worship  of  God,{i) 
then  and  there,  in  the  daytime,  feloniously,  wilfully,  and  mali- 
ciously did  burn  and  consume;  against  the  peace  of  said  com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. (j) 

(397)  For  burning  a  vessel  lying  within  the  body  of  the  county.    Rev. 

Sts.  of  Mass.  ch.  125,  §  5. 

That  C.  D.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the 
first  day  of  June,  iti  the  year  of  our  Lord  in  the  night-time 

of  said  day,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  a  certain  vessel,  called  the  "  Rattler,"  the  property  of 
one  A.  B.  and  of  E.  F.,  G.  H.,  &c.,  then  and  there  lying  and  be- 
ing at  B.,  within  the  body  of  the  said  county  of  S,,  feloniously, 
wilfully,  and  maliciously  did  burn  and  consume;  against  the 
peace  of  said  commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

(398)  For  burning  a  dwelling-house  with  intent  to  injure  an  insur- 

ance company.     Rev.  Sts.  of  Mass.  ch.  126,  §  8. 

That  C.  D.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  with  force  and 

arms,  at  B.,  in  the  County  of  S.,  feloniout^ly,  wilfully,  and  ma- 
liciously did  burn  and  consume  a  certain  dwelling-house,  there 
situate,  of  the  property  of  one  J.  N.,  which  dwelling-house  afore- 
said was  then,  to  wit,  at  the  time  of  committing  the  felony 
aforesaid,  insured  against  loss  and  damage  by  fire  by  the  Mas- 
sachusetts Mutual  Fire  Insurance  Company,  the  same  then  and 
there  being  an  insurance  company  legally  established,  with  in- 
tent thereby  then  and  there  to  injure  said  insurance  company  ; 

((")  If  any  other  building  erected  for  public  use,  as  town-houses^  court-houses, 
academies,  &c.,  the  public  use  for  which  it  is  designed  must  be  set  forth.  Tr. 
&  H.  Free.  35. 

0')  Tr.  &  H.  Free.  35. 

VOL.  1.-24  369 


(401)  OFFENCES  AGllNST  PROPERTY. 

against  the  peace  of  said  commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. (/c) 

(399)  For  setting  fire  to  stacks  of  hay.     Rev.  Sts.  of  Mass.  ch.  126, 

§6. 
That  C.  D.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  at  B.  aforesaid,  in  the 

county  aforesaid,  feloniously,(Z)  wilfully,  and  maliciously  burn 
and  consume  a  certain  stack  of  hay,  of  the  property  of  one  J.  N., 
then  and  there  being;  against  the  peace  of  said  commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. (m) 

(400)  For  burning  a  dwelling-house  in  the  night-time.     Mass.  Stat. 

1852,  ch.  259,  §  3. 

The  jurors  for  the  Commonwealth  of  Massachusetts,  upon 
their  oath  present,  that  C.  D.,  late  of  B.,  in  the  County  of  S., 
'laborer,  on  the  first  day  of  June,  in  the  year  of  our  Lord 
in  the  night-time  of  said  day,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  the  dwelling-house  of  one  A.  B., 
there  situate,  feloniously,  wilfully,  and  maliciously  did  burn  and 
consume  ;  against  the  peace  of  said  commonwealth,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided. (w) 

(401)  Arson.     Burning  a  flouring  mill^  under  Ohio  statute. 

That  A.  B.,  on  the  twentieth  day  of  January,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  forty-three,  in  the 
County  of  Cuyahoga  aforesaid,  wilfully,  maliciously,  and  feloni- 
ously did  burn  and  cause  to  be  burned,  by  setting  fire  thereto,  a 
certain  mill  there  situate,  to  wit,  a  flouring  mill,  the  property  of 
one  M.  N.,  and  of  the  value  of  three  thousand  dollars,(o)  con- 
trary, &c. 

(k)  Tr,  &H.  Prec.37. 

(J)  The  offence  of  burning  stacks  of  hay,  as  provided  against  by  Mass.  Stat. 
1804,  §§  3,  4,  was  not  a  felony.  Commonwealth  v.  Macomber,  3  Mass.  254. 
But  by  Stat.  1852,  ch.  37,  it  now  is.  In  Maryland,  the  offence  is  not  a  felony, 
either  by  common  law  or  by  the  acts  of  1809  and  1845.  Black  v.  The  State,  2 
Maryland,  376 ;  Tr  &  H.  Free.  37. 

(m)  Tr.  &  H.  Free.  37.  (n)  Tr.  &  H.  Free.  32. 

(o)  Warren's  C.  L.  139. 
370 


ARSON.  (405) 

(402)  Arson.  Burning  a  dwelling-house^  under  Ohio  statute. 
That  A.  B.,  on  the  first  day  of  April,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  fifty-two,  in  the  County  of 
Hamilton  aforesaid,  did  wilfully,  maliciously,  and  feloniously  set 
fire  to  and  burn  one  dwelling-house,  then  and  there  being,  the 
property  of  one  M.  N.,  of  the  value  of  fifty  dollars  and  more,(») 
contrary,  &c. 

(403)  Arson.     Burning  a  boat,  under  Ohio  statute. 

That  A.  B.  and  C.  D.,  on  the  thirteenth  day  of  May,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty-three,  in 
the  County  of  Hamilton  aforesaid,  did  wilfully,  maliciously,  and 
feloniously  set  fire  to  and  burn  one  boat,  then  and  there  being, 
of  the  property  of  John  Patton,  of  the  value  of  fifty  dollars  and 
more,(5')  contrary,  &c. 

(404)  Attempt  to  commit  arson.     Setting  fire  to  a  store,  under  Ohio 

statute. 

That  A.  B.  and  C.  D.,  on  the  twenty-fourth  day  of  June,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  forty-six,  in 
the  County  of  Logan  aforesaid,  the  storehouse  of  one  M.  N.,  of 
the  value  of  fifty  dollars,  there  situate,  feloniously,  wilfully,  un- 
lawfully, and  maliciously  did  set  fire  to,  with  intent  then  and 
there  the  said  storehouse  feloniously,  unlawfully,  wilfully,  and 
maliciously  to  burn  and  destroy,(r)  contrary,  &c. 

(405)  Burning  a  stack  of  hay,  under  Ohio  statute. 

That  A.  B.  and  C.  D.,  on  the  nineteenth  day  of  October,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty-one, 
in  the  County  of  Cuyahoga  aforesaid,  unlawfully,  wilfully,  and 
maliciously  did  set  fire  to,  and  thereby  did  then  and  there  burn 
and  destroy  a  certain  stack  of  hay,  of  the  value  of  twenty  dol- 
lars, the  property  of  M.  N.,  there  situate  and  being.(s) 

(p)  Warren's  C.  L.  137.  (jf)  Warren's  C.  L.  137. 

(r)  Warren's  C.  L.  140  ;  Ohio  v.  Davis,  15  Ohio,  272. 
(s)  Warren's  C.  L.  140. 

371 


(408)  OFFENCES   AGAINST   PROPERTY. 

(406)  Burrdng  a  meeting-house,  under  the  Vermont  statute.(g') 
That  J.  R.,  of,  &c.,  on,  &c.,  at,  &c.,  a  certain  meeting-house, 
then  and  there  situated,  belonging  to  the  First  Calvinistic  Con- 
gregational Society  in  Burlington  aforesaid,  erected  for  public 
use,  to  wit,  for  the  public  worship  of  Almighty  God,  did  then  and 
there  wilfully,  maliciously,  and  feloniously  set  fire  to  and  burn, 
contrary,  &c.,  and  against,  &c.  {Conclude  as  in  book  1,  chap- 
ter 3.) 

(407)  For  burning  one^s  oivn  house,  with  intent  to  defraud  the  insur- 
er s.Qi) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  feloniously,  wilfully,  mali- 
ciously, and  unlawfully  did  set  fire  to  a  certain  house,  being  in 
the  possession  of  him  the  said  A.  B.,  with  intent  thereby  to  in- 
jure and  defraud  the  [Itere  state  the  corporation  defrauded)  (then 
and  there  being  a  body  corporate),  against,  &c.,  and  against, 
&c,     ( Conclude  as  in  book  1,  chapter  3.) 

(408)  Burning  a  barrack  of  hay,  under  Pennsylvania  statute.(i') 
That  H.  C,  late,  &c.,  on,  &c.,  at,  &c.,  feloniously,  unlawfully, 

(g)  State  v.  Roe,  12  Vt.  93.  Collamcr,  J.  :  "The  indictment  charged  that 
the  church  or  meeting-house  belonged  to  '  the  First  Calvinistic  Congregational 
Society  in  Burlington.'  The  proof  of  this  allegation  consisted  in  the  paper 
presented,  and  parol  proof,  that,  from  1810,  the  society  has  been  known  by  the 
name  of  the  First  Calvinistic  Congregational  Society,  in  the  town  of  Burlinor- 
ton ;  and  that  they  built,  and  have  ever  occujiied  the  house.  Was  this  suffi- 
cient ?  The  existence  of  a  society  or  corporation,  de  facto,  is  sufficient,  and 
that  is  always  shown  by  parol.  Even  had  it  been  shown  that,  in  point  of  fact, 
the  society  never  were  organized  and  never  were  a  corporation,  it  was  of  no 
importance.  The  burning  of  the  meeting-house  would  be  arson  within  our 
statute,  though  it  did  not  belong  to  a  corporation. 

"  But,  it  is  said,  there  is  a  variance  in  the  name.  They  take  no  name  in  the 
writing.  They  might  have  many  names  by  reputation,  and  they  are  not,  in  the  in- 
dictment, attempted  to  be  described  by  name,  but  by  general  character  or  tenet ; 
and  the  words,  as  to  location,  in  the  town  of  Burlington,  and  in  Burlington, 
are  in  substance  the  same.  This  whole  allegation  and  its  materiality,  will  come 
again  under  consideration  on  the  motion  in  arrest." 

{h)  This   form  was  prepared  under  the  English  statute,  but  it  is  probable 
that  it  would  be  good  at  common  law,  leaving  out  the  "  feloniously."     See  Wh. 
C.  L.  §§  16G4-5. 
(i)  This  form,  with  the  necessary  alterations,  is  based  on  Chapman  v.  Com., 

372 


ARSON.  (409) 

wilfully,  and  maliciously  did  set  fire  to  a  certain  barrack  of  hay 
of  A.  B.,  there  situate,  with  intent  to  destroy  the  same,  to  the 
great  damage  of  the  said  A.  B.,  contrary,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chapter  3.) 

(409)  Burning  a  stable^  under  same. 

That  the  said  H.  C,  at  the  county  aforesaid,  on  the  day  and 
year  aforesaid,  and  within  the  jurisdiction  of  this  court,  with 
force  and  arms,  feloniously,  unlawfully,  wilfully,  and  maliciously 
did  set  fire  to  and  burn  a  certain  stable  of  the  aforesaid  A.  B., 
there  situate,  with  intent  to  destroy  the  same,  to  the  evil  example 
of  all  others  in  like  case  offending,  contrary,  (fee,  and  against, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

5  Wh.  427.  Per  Curiam  :  "  The  word  '  maliciously  '  in  the  first  count,  may  pass 
as  an  equivalent  for  the  word  '  wilfully  ; '  but  the  words  'barrack,  rick,  or  stack  of 
hay,  grain,  or  bark,'  as  much  import  a  barrack  of  hay  or  grain,  as  they  do  a  rick 
or  stack  of  hay  or  grain.  They  were  used  elliptically  in  the  context,  to  avoid 
repetition.  The  statute  is  an  amplification  of  the  act  of  176  7,  under  a  mitigated 
punishment ;  and  it  is  to  be  remarked,  that  it  was  not  indictable  on  that  act, 
though  it  is  so  now,  to  burn  a  barn,  '  unless  it  had  hay  or  corn  therein/ 
It  is  not  credible,  therefore,  that  the  legislature  did  not  formerly  extend  as 
much  protection  to  a  barn  as  they  subsequently  intended  to  extend  to  a  barrack, 
which,  in  Pennsylvania,  is  an  erection  of  upright  posts  supporting  a  sliding  roof, 
usually  of  thatch  ;  for  of  all  the  buildings  on  a  farm,  it  is  the  cheapest,  and  that 
which,  independently  of  the  property  housed  by  it,  offers  the  least  incitement 
to  malicious  mischief.  It  is  not  generally,  if  at  all,  used  by  the  tanner  to  cover 
his  bark  ;  but  containing  that  material,  its  contents  would  be  within  the  words 
of  the  statute,  and  the  protection  intended  to  be  given  by  it. 

"  The  second  count  is  for  feloniously  burning  a  stable,  which  is  undoubtedly 
a  subject  of  the  statutory  offence,  independent  of  its  contents  ;  but  as  it  does 
not  conclude  against  the  form  of  the  statute,  and  there  is  no  such  felony  at  the 
common  law,  there  is  no  count  in  the  indictment  on  which  the  judgment  can  be 
rested."     The  form  in  the  text  is  modified  to  meet  the  opinions  of  the  court. 

373 


OFFENCES   AGAINST   PROPERTY. 


CHAPTER  IV. 

KOBBERY.(y) 

(410)  General  frame  of  indictment  at  common  law. 

(411)  Robbery,  the  prisoner  being   armed  with  a  dangerous  weapon. 

Mass.  Rev.  Sts.  ch.  125,  §  13. 

(412)  Robbery,  the  prisoner  being  armed  with  a  dangerous  weapon, 

and  striking  and  wounding  the  person  robbed.     Rev.  Sts.  of 
Mass.  ch.  125,  §  13. 

(413)  Robbery,  not  being  armed.     Rev.  Sts.  of  Mass.  ch.  125,  §  15. 

(414)  Attempting  to  extort  money  by  threatening  to  accuse  another  of 

a  crime.     Rev.  Sts.  of  Mass.  ch.  125,  §  17. 

(j)  See  Wh.  C.  L.  generally  as  follows  :  — 

A.  Statutes. 

United  States. 
Massachusetts. 

Robbery  with  larceny,  the  robber  being  armed,  &c.,  and  striking 
the  person  robbed,  §  1678. 

Robbery,  not  being  armed,  &c.,  §  1679. 

Attempt  to  extort  by  threats,  &c.,  §  1680. 
New  York. 

Robbery  in  the  first  degree,  §  1681. 

Same  in  second  degree,  §  1682. 

Punishment,  §1683. 

Attempt  to  extort  by  threats,  &c.,  §  1684. 
Pennsylvania. 

Robbery,  &c.,  §  1685. 

Robbery  by  threats,  and  robbery  unarmed,  §§  1686,  1687. 
Virginia. 

Robbery  with  dangerous  weapon,  §  1691. 

Extortion  by  threats,  §  1692. 

Secreting  child,  &c.,  with  intent  to  extort,  &c.,  §  1693. 
Ohio. 

Robbery,  §  1694. 

B,  Robbery  at  Common  Law,  §  1695. 

374 


ROBBERY.  (411) 

(410)  General  frame  of  indictment  at  common  law.(joi) 
That  A.  B.,  &c.,  in  the  highway  there,  in  and  upon  E.  F.  there 
being,(6)  feloniously  did  make  an  assault,  and  him  the  said  E. 
F.  in  bodily  fear(6)  and  danger  of  his  life,  in  the  highvvay(ci!) 
aforesaid,  then  and  there  feloniously  did  put,  and  one  gold  watch, 
of  the  value  of  [insert  goods  taken  as  in  larceny)^  of  the 

goods  and  chattels  of  the  said  E.  F.,  from  the  person  and  against 
the  will(e')  of  the  said  E.  F.,  in  the  highway  aforesaid,  then  and 
there  feloniously  and  violently  did  seize,  take,  and  carry  away 
(with  intent  from  the  person  of  the  said  E.  F.  the  said  goods 
and  chattels  of  the  said  E.  F.  to  rob  and  steal), ((i^)  against,  &c. 
(  Conclude  as  in  book  1,  chapter  3.) 

(411)  Rolbery^  the  prisoner  being  armed  with  a  dangerous  weapon. 
Mass,  Rev.  Sts.  ch.  125,  §  13.(/) 

That  C.  D.,  late  of,  &c.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  with  force  and  arms,  at  B.  aforesaid,  in  the 

county  aforesaid,  in  and  upon  one  J.  N.  feloniously  did  make  an 
assault,  and  the  said  J.  N.  in  bodily  fear  and  danger  of  his  life 

(a)  For  this  form,  see  Stark.  C.  P.  441. 

(b)  It  is  essential  to  aver  that  the  assault  was  feloniously  made.  Wh.  C.  L. 
§  101 ;  Stark.  C.  P.  99.     See  Wh.  C.  L.  §  400. 

(f)  It  is  necessary  to  aver,  that  the  property  was  taken  with  violence  from 
the  person,  and  against  the  will  of  the  party.  Fost.  128  ;  1  Hale,  534;  Leach, 
229.  "  The  allegation  that  the  party  was  put  in  fear  is  of  modern  introduction ; 
and  inDonally's  ease  (Leach,  229),  it  was  observed  by  the  judges,  that  no  tech- 
nical description  was  necessary,  provided  it  appeared  on  the  whole  that  the 
offence  had  been  committed  with  violence,  and  against  the  will  of  the  party. 
And  in  Smith's  case  (East,  P.  C.  783),  the  prisoner  was  charged  with  assault- 
ing the  prosecutor  with  force  and  arms,  and  putting  him  in  corporal  fear,  and 
taking  a  sum  of  money  from  his  person,  against  his  will ;  it  was  objected  that 
the  taking  ought  to  have  been  alleged  to  have  been  done  violently,  but  all  the 
judges  agreed,  that  a  robberj^  was  sufficiently  described,  and  that  Lord  Hale 
(1  Hale,  534)  was  inaccurate  in  his  expression."  Stark.  C.  P.  442.  See  Wh. 
C  L.  §  1 703.  "  Against  his  will "  not  necessary  in  California.  People  v.  Shaler, 
28  Cal.  490. 

(d)  See  as  to  this,  Wh.  C.  L.  §§  1695-1704, 

(e)  This  is  necessary.     Wh.  C.  L.  §§  402,  1704. 

(el)  This  is  necessary  in  Ohio.     Matthews  v.  State,  4  Ohio  (N.  S.),  538. 
(/)   Tr.  &  H.  Free.  461  ;  Commonwealth  v.  Martin,  17  Mass.  (Rand's  ed.), 
359. 

375 


(413)  OFFENCES   AGAINST    PROPERTY. 

then  and  there  feloniously  did  put,  and  one  gold  watch,  of  the 
value  of  two  hundred  dollars,  of  the  goods  and  chattels  of  the 
said  J.  N.,  from  the  person  and  against  the  will  of  the  said  J.  N., 
then  and  there  feloniously,  and  by  force  and  violence,  did  rob, 
steal,  take,  and  carry  away,  the  said  C.  D.  being  then  and  there 
armed  with  a  dangerous  weapon,  to  wit,  a  pistol,  with  intent,  if 
then  and  there  resisted  by  the  said  J.  N.,  him,  the  said  J.  N.,  then 
and  there  to  kill ;  against,  &c.    (  Conclude  as  in  book  1,  chapter  3.) 

(412)  llohbeiy,  the  prisoner  being  armed  with  a  dangerous  weapon^ 
and  striking  and  zvounding  the  ^^^rson  robbed.  On  the  latter 
clause  of  the  thirteenth  section  of  the  Rev.  Sts.  of  Mass.  ch. 
125,  §  13.(^) 

That  A.  B.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  with  force  and  arms, 

at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon  one  J.  N., 
feloniously  did  make  an  assault,  and  the  said  J.  N.  in  bodily  fear 
and  danger  of  his  life,  then  and  there,  feloniously  did  put,  and 
sundry  pieces  of  e^ilver  coin,  current  within  this  commonwealth 
by  the  laws  and  usages  thereof,  amounting  together  to  the  sum 
of  twelve  dollars,  and  of  the  value  of  twelve  dollars,  of  the 
moneys  and  property  of  the  said  J.  N.,  from  the  person  and 
against  the  will  of  the  said  J.  N.,  then  and  there  feloniously  and 
by  force  and  violence  did  rob,  steal,  take,  and  carry  away  ;  and 
that  the  said  A.  B.  was  then  and  there  armed  with  a  certain 
dangerous  weapon,  to  wit,  a  pistol,  and  being  then  and  there  so 
armed  as  aforesaid,  the  said  A.  B.,  with  the  dangerous  weapon 
aforesaid,  the  said  J.  N..  in  and  upon  the  face  and  head  of  the 
said  J.  N.,  then  and  there  feloniously  did  strike  and  wound; 
against,  &c.,  and  contrary,  &c. 

(413)  Robbery^  not  being  armed.     Rev.  Sts.  of  Mass.  ch.  125,  § 

15.(70 

That  C  D.,  late  of,  &c.,  laborer,  on  the  first  day  of  June,  in 
the  year  of  our  Lord  with  force  and  arms,  at  B.  aforesaid, 

{g)    Tr.  &  H.  Prec.  462. 

(K)  Tr.  &  H.  Prec.  463,  where  reference  is  made  to  Commonwealth  v. 
Humphries,  7  Mass.  (Hand's  ed.),  242 ;  Commonwealth  v.  Clifford,  8  Gushing, 
215,217. 

376 


ROBBERY.  (414) 

in  the  county  aforesaid,  in  and  upon  one  J.  N.  feloniously  did 
make  an  assault,  and  the  said  J.  N.  then  and  there  feloniously 
did  put  in  fear,  and  one  gold  watch,  of  the  value  of  one  hun- 
dred dollars,  of  the  goods  and  chattels  of  the  said  J.  N.,  from  the 
person  and  against  the  will  of  the  said  J.  N.,  then  and  there 
feloniously,  and  by  force  and  violence,  did  rob,  steal,  take,  and 
carry  away  ;  against,  &c.,  and  contrary,  &c. 

(414)  Attempting  to  extort  money  hy  threatening  to  accuse  another 
of  a  crime.     Rev.  Sts.  of  Mass.  ch.  125,  §  17. (f) 

That  C.  D.,  late  of,  &c.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  with  force  and  arms,  at  B.  aforesaid,  in  the 

county  aforesaid,  unlawfully  and  maliciously  did  threaten  one  J. 
N.,  in  a  certain  conversation  which  the  said  C.  D.  then  and  there 
had  of  and  concerning  the  said  J.  N.,  to  accuse  the  said  J.  N. 
of  having  {here  describe  the  accusation),  with  the  intent  by  so 
doing  thereby  then  and  there  to  extort  from  the  said  J.  N.  a  cer- 
tain sum  of  money,  to  wit,  the  sum  of  five  hundred  dollars; 
against,  &c.,  and  contrary,  &c. 

(i)  Ti^.&H.  Free.  463. 

377 


OFFENCES  AGAINST  PROPERTY. 


CHAPTER  V. 

LARCENY.  O') 

(415)  General  frame  of  indictment  at  common  law. 

(416)  Stealing  the  property  of  difierent  persons. 

(417)  Larceny  at  a  navy  yard  of  the  United  States. 

(418)  Larceny  on  the  high  seas. 

(/)  For  this  offence  generally,  see  Wh.  C.  L.  as  follows :  — 
A.  Statutes. 

United  States. 

Larceny  in  exclusive  jurisdiction   of  U.   S.,   or  on   high   seas,  § 
1705. 
Massachusetts. 

Breaking,  &c.,  in  night,  office,  ship,  and  not  adjacent  dwelling- 
house  with  intent,  &c.,  §  1 706. 

Entering  the  same  without  breaking,  in  night-time,  or  breaking, 
&c.,  in  day,  §  1707. 

Same  as  to  any  dwelling-house,  &c.,  or  office,  shop,  ship,  &c.,  with 
intent,  &c.,  §  1708. 

Stealing  in  daytime  in  dwelling-house,  &c.,  or  breaking  and  en- 
tering in  night  any  meeting-house,  &c.,  and  stealing  therein, 
§  1709. 

Stealing  in  any  building  on  fire,  §  1710. 

Stealing  from  the  person,  §  1711. 

Stealing  notes,  bills,  deeds,  receipts,  &c.,  §  1712. 

Jurisdiction,  &c.,  §  1  713. 

Second  conviction,  §  1714. 

Breaking  and  entering  in  night-time,  §  1715. 

Stealing  in  dwelling-house  in  night-time,  §  1716. 

Unless  specially  averred,  presumed  to  be  in  night,  §  1717. 

Larceny  of  beast  or  bird,  §  1718. 

runi>hraent  generally,  §  1719. 

Trespass  with  intent  to  steal,  §  1720. 

Accessaries,  §  1721. 

Stealing  of  real  property,  §  1722. 

Property  of  a  person  deceased,  §  1723. 

Breaking  and  entering  in  night-time  any  building  with  intent, 
&c.,  §  1724. 

Entering  in  night-time  without  breaking,  or  in  the  day-time  with 
breaking,  any  building  with  intent,  &c.,  §  1725. 

378 


LARCENY. 

(419)  Larceny  on  the  high  seas.     Another  form. 

(420)  Larceny  in  an  American  ship  at  the  Bahama  Islands. 

(421)  Second  count.     Receiving,  &c. 

(Analysis  of  Larceny  in  Wh.  C.  i.) 

Breaking  and  entering  in  daytime  any  building,  &c.,  with   intent, 
§  1726. 

Punishment,  &c.,  §  1727. 
New  York. 

Larceny  generally,  §  1 728. 

In  dwelling-house  or  ship,  §  1729. 

In  the  night-time,  from  the  person,  §  1730. 

Under  $25,  §  1731. 

Bonds,  notes,  &c.,  §  1732. 

Lottery  tickets,  &c.,  §  1 733. 

Severance  from  realty,  §  1 734. 

Becord,  paper,  &c.,  §  1735. 
Pennsylvania. 

Simple  larceny,  §  1 736. 

Petty  larceny,  §1737. 

Bonds,  bills,  notes,  &c.,  §  1738. 

Restitution,  §  1739. 

Bank  notes,  §  1 74§. 

Dogs,  §1741. 
Virginia. 

Simple  larceny,  §  1742. 

Bank  note,  check,  &c.,  §  1743. 

Severance  from  the  realty,  §  1 744. 

Taking  oysters,  &c.,  §  1746. 
Ohio. 

Larceny  generally,  §  1747. 

Destroying  bank  notes  or  bills,  &c.,  §  1748. 

Larceny  under  $35,  §  1749. 

Horse-stealing,  receiving  or  buying  stolen  horse,  concealing  such 
horse  or  a  horse-thief,  §  1750. 
Larceny  at  Common  Law. 

I.  Siihjects  of  larceny,  §  1751. 
IL  Felonious  intent,  §  1769. 

III.  leaking  and  carrying  away,  §  1802. 

IV.  Ownership,  §  1818, 
V.    Value,  §  1837. 

VI.   Taking  where  the  offender  has  a  bare  charge,  §  1840. 

VII.  Taking  where  the  possession  of  the  goods  has  been   acquired   animo 

furandi,  §  1847. 

VIII.  Taking  where  the  possession  of  the  goods  has  been  obtained  without 

any  fraudulent  intention  in  the  first  instance,  §  1860. 
IX.  Indictment,  §  1869. 

379 


OFFENCES  AGAINST  PROPERTY. 

(422)  Larceny.     Form  in  use  in  New  York. 

(423)  Same  in  Pennsylvania. 

(424)  Second  count.     Receiving  stolen  goods, 

(425)  Same  in  New  Jersey. 

(426)  Same  in  South  Carolina. 

(427)  Same  in  Michigan. 

(428)  Bank  note  in  North  Carolina. 

(429)  Bank  note  in  Pennsylvania. 

(430)  Bank  note  in  Connecticut. 

(431)  Bank  note  in  Tennessee. 

(431^)   Stealing  notes  of  unknown  banks. 

(432)  Larceny  in  dwelling-house  in  daytime.     Mass.  Rev.  Sts.  ch.  126, 

§14. 

(433)  Breaking  and  entering  a  vessel  in  the  night-time,  and  committing 

a  larceny  therein,  under  Mass.  Rev.  Sts.  ch.  126,  §  11. 

(434)  Breaking  and  entering  a  shop  in  the  night,  and  committing  a  lar- 

ceny therein,  under  Mass.  Rev.  Sts.  ch.  126,  §  11. 

(435)  Larceny  by  the  cashier  of  a  bank.     Mass.  Stat.  1846,  ch.  1 71,  §  1. 

(436)  Breaking  and  entering  a  stable   in   the  night-time,  and  commit- 

ting a  larceny  therein.     Mass.  Stat.  1851,  ch.  156,  §  1. 

(437)  Breaking  and  entering  a  shop  in  the  night-time,  adjoining  to  a 

dwelling-house,  with  intent  to  commit  the  crime  of  larceny,  and 
actually  stealing  therein.     Mass.  Stat.  1839,  ch.  31. 

(438)  Entering   a  dwelling-house  in   the  night-time  without   breaking, 

some    persons   being   therein,    and    being  put  in  fear.     Mass. 
Rev.  Sts.  ch.  126,  §  12. 

(439)  Breaking  and  entering  a  dwelling-house  in  the  daytime,  the  owner 

being  therein,  and  being  put  in  fear.     Mass.  Rev.  Sts.  ch  126, 
§12. 

(440)  Breaking  and   entering  a  city  hall,  and  stealing  therein  in  the 

night-time.     Mass.  Rev.  Sts.  ch.  126,  §  14. 

(441)  Stealing  in  a  building  that  is  on  fire.     Mass.  Rev.  Sts.  ch.  126. 

(442)  Larceny  from  the  person.     Rev.  Sts.  of  Mass.  ch.  126,  §  16. 

(443)  Larceny  of  real  property.     Mass.  Stat.  1851,  ch.  151. 

(444)  Larceny  and  embezzlement  of  public  property,  on  the  statute  of 

the  United  States  of  the  30th  April,  1790,  §  26. 

(445)  Against  an  assistant  postmaster,  for  stealing  money  which  came 

into   his   hands    as   assistant    postmaster,   on    the    Act  of  3d 
March,   1825,  §  21. 
380 


LARCENY.  (415) 

(415)    General  frame  of  indictment  at  common  law. 
That  A.  B.,  at,  &c.,  on,  &c.,  one  hat,(a)  of  the  value  of  one 
dollar,(5)  of  the  goods  and  chattels  of  C.  D.,(6')  then  and  there 
being    found,   feloniously   did   steal,   take,    and   carry  avvay.(c?) 
{Conclude  as  in  book  1,  chapter  3.) 

(a)  The  articles  alleged  to  be  stolen  should  be  described  specifically  by  the 
names  by  which  they  are  commonly  known  ;  and  their  number,  quantity,  and 
value  set  forth.  Wh.  C.  L.  §§  354-363.  A  lumping  description  will  not  do ; 
but  each  individual  article  must  be  individually  set  forth  ;  "  twenty  wethers 
and  ewes  "  would  be  bad  for  uncertainty ;  the  actual  number  of  each  should  be 
stated.  2  Hale,  183  ;  Archbold's  C.  P.  9th  ed.  45.  But  when  the  articles  are 
of  the  same  kind  they  can  be  joined  numeratively,  as  "  six  pair  of  shoes,  of  the 
value,  &c. ;  one  hat,  of  the  value,"  &c.  Wh.  C.  L.  §§  354-363.  "  Six  hand- 
kerchiefs," is  good,  though  the  handkerchiefs  were  in  one  piece,  the  pattern 
designating  each.  6  Term  R.  26  7 ;  1  Ld.  Raym.  149.  It  has  been  held  enough 
to  say,  "one  hide,  of  the  value,"  &c.  (State  v.  Dowell,  3  Gill  &  J.  310)  ;  "one 
book,"  &c.,  without  describing  its  name  (State  v.  Logan,  1  Mo.  377);  "one 
shovel  plough"  (State  v.  Sanson,  3  Brevard,  5)  ;  "one  watch,"  &c.  (Williams 
V.  State,  25  Ind.  150);  and  "a  parcel  of  oats."  State  v.  Brown,  1  Dev.  137.  The 
proof  as  to  the  description  of  articles  must  correspond  with  the  alleo^ation  ; 
but,  as  to  the  number,  quantity,  or  value,  a  variance  between  the  statement  and 
proof,  as  will  be  seen,  is  wholly  immaterial.  R.  v.  Johnson,  3  M.  &  S.  148, 
539.  If  a  statute  makes  a  distinction  between  things  belonging  to  the  same 
class,  or  commonly  comprehended  within  one  general  term,  it  is  essentially 
necessary  to  indicate  the  particular  thing,  and  the  genei'al  term  will  not  be 
sufficient.     R.  v.  McDermott,  R.  &  R.  356  ;  R.  v.  Duffin,  lb.  365. 

Where  a  statute  (15  Geo.  II.  c.  34)  specified  "lambs"  as  well  as  "sheep," 
and  the  indictment  was  for  stealing  sheep,  evidence  of  stealing  lambs  was  held 
not  to  support  it.  R.  v.  Loom  and  others,  1  Mood.  C.  C.  160;  R.  v.  Cook,  2 
East,  P.  C.  616.  A  charge  of  stealing  "  one  sheep,"  is  not  supported  by  proof 
of  stealing  an  animal  under  a  year  old,  called  a  "  lambteg ; "  it  should  have  been 
laid  "  one  lamb"  (R.  v.  Birkett,  infra)  ;  though  in  Delaware  a  contrary  ruling 
was  had.  State  v.  Tootle,  2  Harringt.  541.  A  charge  of  stealing  lambs  is 
supported  by  proof  of  finding  the  carcasses  in  the  owner's  ground,  and  only  the 
skins  carried  away.  R.  v.  Rawlins,  2  East,  P.  C.  617.  It  was  long  held  (in  7 
&  8  Geo.  IV.  c.  29,  s.  25)  that  an  indictment  for  stealing  a  sheep  would  not 
be  supported  by  proof  of  stealing  a  ewe,  because  that  statute  specifies"  ewe,  ram, 
and  lamb,"  as  well  as  "sheep"  (R.  v.  Puddifoot,  lb.  24  7),  and  "  sheeiJ  "  in  that 
act  means  "  wether  "  only.  R.  v.  Birkett,  1  C.  &  P.  216.  But  "a  rig  sheep  " 
was  held  well  described  as  "  one  sheep  "  (R.  v.  Stroud,  6  C.  &  P.  535,  Alderson, 
B.)  ;  and  now  by  a  later  decision,  where  the  sex  of  the  stolen  animal  could  not 
be  ascertained  from  inspecting  those  parts  of  the  skin  and  flesh  which  remained, 
an  indictment  charging  the  stealing  of  a  sheep  was  held  sufficient,  even  as- 
suming that  the  sheep  stolen  Avas  not  a  wether,  but "  a  ram,  ewe,  or  lamb ;  "  for 

381 


(415)  OFFENCES  AGAINST  PROPERTY. 

those  words  may  be  rejected,  the  word  "  sheep  "  in  the  act  being  a  generic  term. 
R.  V.  M'Culley,  2  Mood.  C.  C.  34.  Under  the  Tennessee  statute,  in  which  "  gcld- 
inw  "  and  "  liorse  "  are  distinguished,  evidence  of  stealing  the  former,  will  not 
support  an  indictment  for  stealing  the  latter  (Tully  v.  State,  3  Humph.  323) ; 
though  it  would  seem  that  "  equus"  in  the  Latin  pleadings  in  trover,  was 
satisfied  by  proof  of  a  gelding.  Gravely  v.  Ford,  Ld.  Raym.  1209.  Where  the 
larceny  of  dead  animals  is  charged,  if  the  animal  has  another  appellation  when 
living  from  when  dead,  or  if  it  is  governed  by  a  different  law  of  property,  it 
must  be  laid  as  dead,  otherwise  it  will  have  been  presumed  to  have  been  alive, 
and  the  variance  will  be  fatal.  R.  v.  Puckering,  1  Mood.  C.  C.  242.  Wh.  C. 
L.  §§  354-63. 

WriUen  Inslruments.  The  pleading  of  written  instruments  is  fully  treated 
in  Wh.  C.  L.  §  314.  The  following  more  recent  cases  may  be  noted  at  this 
point :  — 

Bonds  of  the  United  States  are  sufficiently  described  as  "  sundry  bonds  of  the 
United  States  of  America,  for  the  payment  of  money,  issued  by  authority  of 
law,  and  of  the  aggregate  value  of  one  thousand  dollars."  Com.  v.  Butterick, 
100  Mass.  2. 

The  larceny  of  "  Treasury  Notes  "  is  sustained  by  proof  of  "  Green  Backs." 
Hickey  v.  State,  23  Ind.  21. 

In  Massachusetts,  a  promissory  note  is  sufficiently  described  as  "  one  promissory 
note  of  the  value  of  three  hundred  dollars,  and  one  piece  of  paper  of  the  value 
of  three  hundred  dollars,  of  the  goods  and  chattels  "  of,  &c.  Com.  v.  Brettun, 
100  Mass.  206. 

The  principle  is  familiar,  that  no  matter  how  many  distinct  articles  are  con- 
tained in  the  indictment,  the  proof  of  the  stealing  of  the  one  only  will  be 
enough  to  support  a  conviction.     Wh.  C.  L.  §§  354,  363,  616. 

Larceny  does  not  lie  for  a  thing  which  is  not  the  subject  of  determinate 
property,  as  waifs,  treasure  trove,  &c.  (Wh.  C.  L.  §  641),  though  deerskins, 
hung  up  in  an  Indian  camp  (Pa.  v.  Becomb,  Add.  386)  ;  and  clothing  found  on 
a  dead  body,  on  shore,  from  a  wreck,  are  not  subject  to  this  rule.  Wenson  v. 
Say  ward,  13  Pick.  402. 

The  goods  must  be  personal  goods  and  of  intrinsic  value,  in  which  some  one 
has  a  property,  and  they  must  not  be  connected  with  lands  or  buildings  at  the 
time  of  taking.  They  must  be  things  of  intrinsic  value  ;  and,  therefore,  if  they 
are  valuable  only  as  evidence  of  claims  or  demands,  or  title  to  land,  as  notes, 
orders,  bills,  or  deeds,  they  are  not,  at  common  law,  the  subject  of  larceny, 
although  protected  by  statute.  Arch.  C.  P.  9th  ed.  165 ;  Wh.  C  L.  §§  349, 1751 
-68;  State  v.  TiUery,  1  N.  &  M'C.  9;  Cress  v.  State,  1  Port.  83;  State  v. 
Wilson,  2  Tr.  Con.  S.  C.  R.  49  ;  State  v.  Holbrook,  13  Johns.  90;  R.  v.  West- 
beer,  Stra.  1133 ;  East,  P.  C.  596.  In  the  last  case  the  writing  stolen  concerned 
the  realty ;  but  stealing  the  parchment  on  which  a  record,  &c.,  of  a  court  of 
justice  not  concerning  the  realty  is  written,  is  now  indictable  in  England  as  a 
misdemeanor  by  the  enactments  of  7  &  8  Geo.  IV.  c.  29,  s.  21  (see  R.  v. 
Walker,  1  Mood.  C.  C.  155),  and  was  previously  indictable  as  a  larceny  at 
common  law  if  stated  aa  so  much  parchment.  lb.  It  seems  that  where  the  evi- 
382 


LARCENY.  (415) 

dence  fails  to  support  a  verdict  in  a  count  charging  the  larceny  of  the  instru- 
ment under  its  technical  description,  there  may  be  a  conviction  on  a  count 
charging  the  larceny  of  a  piece  of  paper.  R.  v.  Perry,  1  C.  &  K.  725.  This 
principle,  however,  is  now  held  only  to  apply  to  those  cases  where  the  paper, 
from  want  of  a  stamp  or  other  reason,  does  not  contain  a  valid  agreement. 
R.  V.  Watts,  24  Eng.  Law  &  Eq.  573 ;  R.  v.  Powell,  14  Eng.  Law  &  Eq.  574 ; 
Wh.  C.  L.  §  349.  (But  see  Com.  v.  Brettun,  100  Mass.  206.)  So  it  is  no  lar- 
ceny to  take  animals  which  are  regarded  as  of  a  base  nature,  as  dogs,  cats, 
foxes,  monkeys,  and  ferrets,  although  domesticated,  which  do  not  directly  or 
indirectly  serve  for  food,  and  the  value  of  which  is  merely  accidental  or  imair- 
inary  (Hawk.  b.  1,  c.  33.  s.  36)  ;  and,  accordingly,  it  has  been  held,  that  an  in- 
dictment for  stealing  "  five  live  tame  ferrets  confined  in  a  hutch,"  could  not  be 
supported,  although  it  was  proved  that  the  animals  were  tame,  and  had  been 
sold  by  the  prisoner  for  nine  shillings.  R.  v.  Searing,  R.  &  R.  350.  Dots, 
however,  when  taxed,  are  subject  in  Pennsylvania  to  a  different  rule.  Wh.  C. 
L.  §  1741.  Bees,  which  when  confined  in  a  hive  are  protected,  cease  to  be  so 
when  unreclaimed,  though  they  may  happen  to  be  confined  in  a  tree  by  the 
owner  of  it.     Waleis  v.  Mease,  3  Binn.  546. 

They  must  be  things  in  which  some  one  has  a  property ;  'and,  therefore,  ani- 
mals fercB  naturm  and  unreclaimed,  as  deer  in  a  forest,  conies  in  a  warren,  a 
marten  when  caught  in  a  trap  in  the  woods  (Norton  v.  Ladd,  5  N.  Ilamp.  203), 
fish  in  the  sea  or  in  rivers,  game,  and  Avild  fowl,  unless  domesticated,  are  not  the 
subjects  of  larceny.  1  Hale,  510.  A  reclaimed  hawk  is  the  subject  of  larceny, 
if  known  to  be  so.  1  Hale,  512.  So  are  swans,  though  at  large  in  a  public 
river,  if  lawfully  marked,  or  whether  marked  or  not,  if  in  a  private  water.  Dalt. 
c.  156.  But  when  appropriated  and  confined,  e.  g.  fish  in  a  trunk  or  net,  par- 
tridges or  pheasants  in  a  meadow,  deer  so  inclosed  in  a  park  as  to  be  taken  out 
at  pleasure  (1  Hale,  511  ;  1  Hawk.  c.  23,  s.  39),  or  so  tamed  as  to  be  habituated 
to  return  to  a  place  provided  by  the  owner,  these  animals  being  "  under  pro- 
priety," become  the  subject  of  larceny,  as  for  instance  a  dove,  when  in  its  mas- 
ter's dove-cote.  Com.  v.  Chace,  9  Pick.  15;  R.  v.  Bi-ooks,  4  C.  &  P.  131.  When 
killed,  their  flesh  and  skin  are,  in  like  manner,  the  property  of  the  lawful  pos- 
sessor. On  the  same  principle  a  man  may  be  indicted  for  stealing  ice  when 
stowed  away  in  an  ice-house  for  domestic  use.  Ward  v.  People,  3  Hill,  N.  Y. 
395  ;  6  lb.  144. 

They  must  be  things  unconnected  with  land  or  buildings  at  the  time  of  the 
taking,  or  no  larceny  will  be  committed  at  common  law  by  their  being  severed 
and  immediately  removed.  Thus  it  was  no  larceny  to  dig  and  carry  away  min- 
erals from  the  earth,  to  pull  down  and  carry  away  any  part  of  a  building;  to  cut, 
gather,  and  take  away  corn  and  fruit,  qr  to  fell  trees.  1  Hale,  509,  510.  But  if 
any  of  these  things  be  at  one  time  severed  by  the  offender  from  the  land,  and 
removed  by  him  at  another  time,  though  the  severance  was  by  the  offender  him- 
self, so  that  the  severance  and  the  removal  cannot  be  regai-ded  as  one  continued 
act,  the  removal  will  be  a  larceny.  Thus,  if  coal,  &c.,  be  raised  from  a  mine  in 
daytime,  and  laid  on  the  surface  of  the  ground  at  the  mouth  of  the  jiit,  and  car- 
ried away  at  night  by  the  same  party,  or  if  corn  be  cut,  or  fruit  gathered,  or 

383 


(415)  OFFENCES  AGAINST  PROPERTY. 

timber  felled,  atone  time,  and  after  an  interval  be  carried  away,  without  such  a 
continued  presence  of  the  ihief  as  to  make  the  taking  and  carr}in<2;  away  one 
continued  act  (1  Hale,  510),  or  if  copper  be  severed  from  the  brickwork  in  which 
it  is  set  during  the  daytime,  and  carried  off  at  night  by  the  si^me  party  (Lee  v. 
Risdon,  7  Taunt,  191),  these  will  be  larcenies.     Dickinson's  Q.  S.  Cth  cd.  238. 

(i)  Some  value  must  be  attached  to  the  article  stolen,  or  the  indictment  will 
be  bad.  Wh.  C.  L.  §§  362, 18G9  ;  Rose.  Cr.  Ev.  512 ;  People  v.  Payne,  6  Johns. 
103  ;  State  v.  Tillery,  1  N.  &  M'C.  9 ;  People  v.  Wiley,  3  Hill,  N.  Y.  R.  194 ; 
State  V.  Wilson,  1  Port.  110;  State  v.  Bryant,  2  Car.  L.  R.  2G9  ;  State  v.  Thomas, 
2  M'C.  527  ;  State  v.  Goodrich,  46  N.  H.  186.  Thus  indictments  charging  the 
defendant  with  stealing  a  thing  destitute  of  value,  or  to  which  no  value  is  as- 
sif^ned,  will  be  quashed.  State  v.  Bryant,  2  Car.  L.  R.  617 ;  Wilson  v.  State,  1 
Port.  118.  It  is  best  to  give  a  separate  value  to  each  distinct  article  included  in 
an  indictment,  as  otherwise  the  offence  must  be  made  out  as  to  all  the  articles, 
as  the  o  rand  jury  has  ascribed  a  value  to  all  of  them  collectively.  R.  v.  Forsyth, 
R.  &  R.  274.  But  if  only  a  collective  value  is  given,  the  verdict  will  be  sus- 
tained if  the  defendant  is  found  guilty  of  stealing  all  the  articles  named.  State 
V.  Hood,  51  Maine,  363.  But  an  indictment  in  New  Hampshire  for  selling  "  sun- 
dry bank  notes,  amounting  together  to,"  &c.,  was  held  bad.  Hamblett  v.  State, 
18  N.  H.  384.  In  Massachusetts,  however,  an  indictment  was  susiained  which 
charged  the  larceny  of  sundry  bank  bills,  of  some  banks  respectively  to  the  jurors 
unknown,  of  the  value  of,"  &c.  Com.  v.  Grimes,  10  Gray,  470,  post,  431^.  See 
Wh  C.  L.  §§  354-362.  If  value  be  given  to  some  of  the  articles,  and  not  to  the 
remainder,  judgment  will  be  arrested  as  to  the  part  to  which  no  value  is  given. 
Com.  V.  Smith,  1  Mass.  245  ;  People  v.  Wiley,  3  Hill,  N.  Y.  R.  194.  As  has 
just  been  noticed,  where  there  is  a  difliculty  in  the  description  of  a  note  or 
other  instrument  stolen,  it  is  advisable  to  insert  a  count  for  the  larceny  of  "one 
piece  of  paper  of  the  value  of  one  penny ; "  this  assignment  of  value  has  been 
held  to  be  sufficient.  R.  v.  Perry,  1  C.  &  K.  725.  But  the  better  opinion  is  now 
that  such  an  allegation  is  not  good  when  the  instrument  is  a  valid  one  (ante, 
note  (//),  Wh.  C.  L.  §  349).  In  those  States  where  the  distinction  between  grand 
and  petty  larceny  is  abolished,  it  is  inmiaterial  whether  the  goods  be  proved  to 
be  of  the  value  laid  in  the  indictment  or  not.    Arch.  C.  P.  10th  ed.  49,  101,  211. 

(c)  As  has  been  already  observed,  it  is  of  necessary  importance  that  the  name 
of  the  party  whose  goods  are  alleged  to  have  been  stolen  should  be  given  cor- 
rectly. See  Arch.  C.  P.  10th  ed.  176  ;  Wh.  C  L.  §§  595-8.  In  applying  this 
principle,  there  are  one  or  two  points  which  it  is  essential  to  keep  in  mind  in 
determining^  the  question  of  property  in  each  particular  case. 

1 .  Where  goods  are  stolen  out  of  the  possession  of  the  bailee,  they  may  be  de- 
scribed in  the  indictment  as  the  property  of  either  bailor  or  bailee.  Wh.  C.  L. 
§  1818,  &c.;  Arch.  C.  P.  10th  ed.  212;  State  v.  Somerville,  21  Maine,  586; 
State  V.  Grant,  22  Maine,  171.  The  cases  usually  given  as  an  illustration  of  this 
rule  are  those  of  goods  left  at  an  inn  (R.  v.  Todd,  2  East,  P.  C.  658)  ;  cloth  given 
to  a  tailor  to  manufacture,  and  linen  to  a  laundress  to  wash  (R.  r.  Packer,  2  East, 
P,  C.  658)  ;  chattels  intrusted  to  a  person  for  safe  keeping  (R.  v.  Taylor,  1  Leach, 
356)  ;  R.  V.  Slatham,  lb. ;  see  R.  i-.  Ashley,  1  C.  &  K.  198)  ;  goods  levied  on  by  a 
384 


LARCENY.  (415) 

constable  and  in  liis  custody  (People  v.  Palmer,  10  Wend.  165)  ;  in  each  of  these 
cases  the  property  may  be  laid  as  the  goods  and  chattels  of  the  bailee  or  of  the 
owner,  at  the  option  of  the  prosecutor.  See  2  Hale,  181  ;  1  lb.  G13;  1  Hawk.  c. 
33,  s.  47  ;  R.  v.  Bird,  9  C.  &  P.  44.  But  the  bailee  of  a  bailee  lias  no  such  special 
property  as  would  authorize  the  goods  being  laid  as  his.  Thus  an  indictment 
will  be  vicious  which  lays  the  property  of  goods  taken  in  execution  in  the  bailee 
or  recei/iier  of  the  sheriff".  Com.  v.  Morse,  14  Mass.  217;  Norton  v.  People,  8 
Cow.  137.  The  joroperty  also  cannot  be  laid  in  one  who  has  neither  had  the 
actual  nor  constructive  possession  of  the  goods,  and  thus  where  the  person  named 
as  owner  was  merely  servant  to  the  real  owner,  or  where  the  property  was  laid 
in  the  master  who  actually  had  never  seen  or  received  the  goods,  and  where  in 
fact  the  servant  had  been  specially  intrusted  with  them,  the  owners-hip  was  held 
to  be  wrongly  laid.  R.  v.  Hutchinson,  R.  &  R.  412;  R.  r.  Ruddick,  8  C.  & 
P.  237. 

2.  Goods  stolen  from  a  dead  person,  such  as  the  coffin  or  shroud,  must  be  laid 
in  the  executors  and  administrators,  if  there  be  such,  and  if  not,  in  the  person 
who  defrayed  the  expenses  of  the  luneral.     Wh.  C.  L.  §§  1818-1837. 

3.  Goods  stolen  ii'ora  a  married  woman  must  be  invariably  laid  as  the  prop- 
erty of  her  husband,  even  though  she  lives  in  separation  from  him,  with  an  in- 
come vested  in  trustees  for  her  private  use.  Wh.  C.  L.  §§  1818-1837 ;  Arch.  C. 
P.  lOtli  ed.  "213.  Under  the  married  woman's  act  they  must  be  laid  as  her  own, 
though  it  is  desirable  to  add  a  count  averring  the  ownership  to  be  in  her  hus- 
band. But  where  goods  were  stolen  from  a  single  woman,  Avho  afterwards  before 
indictment  married,  it  was  held  that  the  property  was  rightly  laid  in  her  by  her 
maiden  name.     R.  v.  Turner,  1  Leach,  536. 

4.  At  common  law  where  the  owners  form  an  unincorporated  partnership,  the 
names  of  all  of  them  must  be  correctly  stated  (Wh.  C.  L.  §§  1818-1837;,  and  even 
where  the  property  was  temporarily  vested  in  one  of  them,  the  names  of  all  the 
members  of  the  firm  must  be  set  out.  Hogg  v.  State,  3  Blackf.  326 ;  R.  r,  Shov- 
ington,  1  Leach,  513 ;  R.  v.  Beacall,  1  Mood.  C.  C.  15  (but  see  Marcus  i;.  State, 
26  Ind.  1(»1  ;  State  ik  Cunningham,  21  Iowa,  433).  But  if  the  goods  of  a  corpo- 
ration are  stolen,  the  property  must  be  charged  to  be  in  the  corporation  in  its 
corporate  name,  and  not  in  the  individuals  who  comprise  it.  R.  v.  Patrick,  2  East, 
P.  C.  1059;  1  Leach,  2.53;  Arch.  C.  P.  10th  ed.  214.  It  is  not  necessary,  it 
seems,  to  aver  the  political  existence  of  the  corporation,  as  that  is  a  matter  for 
evidence,  and  after  verdict  it  may  be  inferred  from  the  corporate  name.  Lith- 
gow  V.  Com.,  2  Va.  Cases,  296. 

5.  Necessaries  furnished  by  a  parent  to  a  child,  may  be  laid  as  the  property 
of  either  parent  or  child  (Arch.  C.  P.  10th  ed.  213;  2  East,  P.  C.  654),  though 
it  is  safer  to  allege  them  to  be  the  property  of  the  child.  R.  v.  Forsgate,  1 
Leach,  463;  R.  v.  Hughes,  C.  &  M.  593. 

6.  Where  the  owner  is  unknown  it  is  to  be  so  stated  (Com.  v.  Morse,  14  Mass. 
217;  Com.  r.  Manley,  12  Pick.  173;  1  Hale,  512;  Wh.  C.  L.  §ij  251,  252, 
595-598)  ;  though  if  the  names  of  the  owners  appear  on  the  trial  to  have  been 
capable  of  ascertainment  at  the  finding  of  the  indictment,  the  defendant  must  be 

VOL.  I.  -  25  3S5 


(417)  OFFENCES  AGAINST  PROPERTY. 

(416)  Stealing  the  property  of  different  persons. 
That  defendant,  on,  &c.,  at,  &c.,  one(g)  silver  watch,  of  the 
value  of  forty  shillings,  of  the  goods  and  chattels  of  E.  T.,  two 
hats,  of  the  value  of  twenty  shillings,  and  two  waistcoats,  of  the 
value  of  six  shillings,(/)  of  the  goods  and  chattels  of  (^)  one  G. 
H.,  then  and  there  being  found,  feloniously  did  steal,  take,  and 
carry  away,  against,  Sac.     {Conclude  as  in  book  1,  chapter  3.) 

(417)  Larceny  at  a  navy  yard  of  the  United  States. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  and  within  the  navy  yard 
adjoining  the  City  of  Brooklyn,  in  the  County  of  Kings,  in  the 
Southern  District  of  New  York  aforesaid,  the  site  of  which  said 
navy  yard   had  been  before  the  said  day  of  in  the 

year  last  aforesaid,  ceded  to  the  said  United  States,  and  was  on 
the  said  last  mentioned  day  then  and  there  under  the  sole  and 
exclusive  jurisdiction  of  the  said  United  States,  feloniously  did 
take  and  carry  away,  with  intent  to  steal  and  purloin  [state  def- 
initely the  things  taken,  and  the  value  of  each  separately),  said  {as 
before)  then  and  there  being  the  property  of  one  against, 

&c.,  and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

Second  count. 

{Like  first  count,  substituting) :  "  then  and  there  being  of  the 
personal  goods  of   one  ,"  for  "  then  and  there  being  the 

property  of  one  ." 

acquitted.  R.  v.  Walker,  3  Camp.  264 ;  R.  v.  Robinson,  Holt.  N.  P.  C.  595. 
Qucere,  Com.  v.  Stoddart,  9  Allen  (Mass.),  280. 

fd)  Where  the  subject  of  the  larceny  is  live  cattle,  "  steal,  take,  and  lead 
away,"  may  be  substituted.  "  Take,"  however,  is  essential.  2  Hale,  184;  Wh. 
C.  L.  §  402.     See  generally,  People  v.  Brown,  27  Cal.  500. 

(e)  As  to  the  description  of  the  property  stolen,  its  value  and  ownership,  see 
ante,  Wh.  C.  L.  §§  354-363;  Stark.  C.  P.  213.  The  owner  of  goods  stolen,  is  not 
in  strictness  entitled  to  the  restitution  of  any  which  are  not  specified  in  the  in- 
dictment. East,  P.  C.  288.  If  a  thief  sell  the  goods  the  prosecutor  is  entitled 
to  the  money.     Hanberrie's  case,  Cro.  Eliz.  661 ;  1  Hale,  542. 

(/)  As  to  value,  see  ante,  note  (b). 

(g)  Where  the  felonies  are  completely  distinct,  they  ought  not  to  be  joined 
in  the  same  indictment  (see  AVh.  C.  L.  §§  414-427),  but  where  the  transaction  is 
the  same,  as  where  the  property  of  different  persons  is  taken  at  the  same  time, 
there  seems  to  be  no  objection  to  the  joinder.     People  v.  Thompson,  28  Cal.  214. 

386 


LARCENY.  019) 

Third  count. 

{Like  second  county  substituting) :  "being  then  and  there  the 
personal  goods  of  some  person  or  persons  to  the  said  jurors 
unknown,"  for  "  then  and  there  being  of  the  personal  goods 
of  one  ." 

{For  final  count.,  see  ante,  14,  15,  16,  181  w.,  239  n.) 

(418)  Larceny  on  the  high  seas. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  in  and  on  board  of  a  certain 
American  vessel,  being  a  called  the  belonging  in  whole 

or  in  part  to  a  certain  person  or  persons,  then  and  still  being  a 
citizen  or  citizens  of  the  United  States  of  America,  whose  name 
or  names  are  to  the  said  jurors  unknown,  on  the  high  seas,  out 
of  the  jurisdiction  of  any  particular  state  of  the  said  United 
States,  on  waters  within  the  admiralty  and  maritime  jurisdiction 
of  the  said  United  States,  and  within  the  jurisdiction  of  this 
court,  feloniously  did  take  and  carry  away  {state  the  nature  of 
the  things  taken,  their  particular  name  and  value),  with  intent  to 
steal  or  purloin  the  same,  against,  &c.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chapter  3.) 

Second  count. 

{Like  first  count,  inserting  after  the  specification  of  the  articles 
taketi,  and  before)  :  "  with  intent  to  steal  or  purloin  the  same," 
"  of  the  personal  goods  of  some  person  or  persons  to  the  said 
jurors  unknown." 

TJiird  count. 

{Like  second  count,  substituting) :  "  of  the  personal  goods  of 
one  j"/or  "of  the  personal  goods  of  some  person  or  per- 

sons to  the  said  jurors  unknown." 

{For  final  count,  see  ante,  14, 15,  16,  181  n.,  237  n.) 

(419)  Larceny  on  the  high  seas.     Another  form. 

That  A.  B.,  on,  &c.,  at,  &c.,  in  and  on  board  of  a  certain  ves- 
sel being  a  called  the  belonging  and  appertaining,  in 
whole  or  in  part,  to  a  certain  person  or  persons  then  and  still 
being  a  citizen  or  citizens  of  the  United  States  of  America, 
whose  names  are  to  the  said  jurors  unknown,  on  the  high  seas, 

387 


(420)  OFFENCES  AGAINST  PROPERTY. 

out  of  the  jurisdiction  of  any  particular  state  of  the  said  United 
States,  wiihiii  the  admiralty  and  maritime  jurisdiction  of  the 
said  United  States  of  America,  and  of  this  court,  feloniously  did 
take  and  carry  away,  with  intent  to  steal  and  purloin  [here  state 
particvlarJy  each  article,  and  the  value  of  each  separately),  of  the 
personal  goods  of  some  person  or  persons  to  the  jurors  aforesaid 
as  yet  unknown,  against,  &c.,  and  against,  &c.  [Conclude  as 
in  book  1,  chapter  3.) 

Second  count. 

[Same  as  first  count,  substituting) :  "  belonging  and  appertain- 
ing, in  whole  or  in  part,  to  one  then  and  still  being  a 
citizen  of  the  United  States  of  America,"  for  "  belonging  and 
appertaining,  in  whole  or  in  part,  to  a  certain  person  or  persons 
then  and  still  being  a  citizen  or  citizens  of  the  United  States  of 
America,  whose  names  are  to  the  said  jurors  unknown." 

Third  count. 

[Like  first  count,  substituting) :  "  of  the  personal  goods  of  one 
,"  for  "  of  the  personal  goods  of  some  person  or  persons 
to  the  jurors  aforesaid  as  yet  unknown." 

Fourth  count, 

i[Like  second  count,  substituting-)  :  "  of  the  personal  goods  of 
one  ,"  for  "  of  the  personal  goods  of  some  person  or  per- 

«ons  to  the  jurors  aforesaid  as  yet  unknown." 

[For  final  count,  see  ante,  14,  15,  16,  17,  181  n.,  239  n.) 

(420)  Larceny  in  an  American  ship  at  the  Bahama  Islands. 

That,  &c.,  on  board  of  a  certain  vessel,  to  wit,  a  sloop,  called 
the  "  C.  W.,"  then  and  there  belonging  to  S.  P.  W.,  J.  C.  B.,  and 
N.  F.,  citizens  of  the  United  States,  while  lying  in  a  place,  to 
wit.  Great  Harbor,  in  Long  Island,  one  of  the  Bahama  Islands, 
within  the  jurisdiction  of  a  certain  foreign  sovereign,  to  wit,  the 
king  of  the  United  Kingdom  of  Great  Britain  and  Ireland,  a 
certain  J.  P.  M.,  otherwise  called  J.  M.,  otherwise  called  P.  M., 
late  of  the  district  aforesaid,  mariner,  then  and  there  being  a 
person  belonging  to  the  company  of  the  said  vessel,  did  take  and 
carry  away,  with  an  intent  to  steal  and  purloin,  certain  personal 
388 


LARCENY.  (423) 

goods  of  the  said  S.  P.  W.,  to  wit,  one  quadrant,  of  the  value  of 
twenty  dollars,  one  reflecting  semicircle,  of  the  value  of  twenty 
dollars,  twenty-four  lunar  tables,  of  the  value  of  twenty-four  dol- 
lars, one  shaving  box  and  glass,  of  the  value  of  five  dollars,  one 
chart,  of  the  value  of  one  dollar,  contrary,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chapter  3.) 

(421)  Second  count.     Receiving,  ^e. 

That,*(5:c.,  on  board  of  a  certain  vessel,  to  wit,  a  sloop,  called 
the  "  C.  W.,"  then  and  there  belonging  to  S.  P.  W.,  J.  C.  B.,  and 
N.  F..  citizens  of  the  United  States,  while  lying  in  a  place,  to 
wit,  Great  Harbor,  in  Long  Island,  one  of  the  Bahama  Islands, 
within  the  jurisdiction  of  a  certain  foreign  sovereign,  to  wit,  the 
king  of  the  United  Kingdom  of  Great  Britain  and  Ireland,  the 
said  J.  P.  M.,  otherwise  called  J.  M.,  otherwise  called  P.  M.,  then 
and  there  being  a  person  belonging  to  the  company  of  the  said 
vessel,  did  then  and  there  receive  and  buy  certain  goods  and 
chattels  that  had  been  feloniously  taken  and  stolen  from  a  certain 
other  person,  to  wit,  the  said  S.  P.  W.,  at  the  district  aforesaid, 
to  wit,  one  quadrant,  of  the  value  of  twenty  dollars,  one  reflect- 
ing semicircle,  of  the  value  of  twenty  dollars,  twenty-four  lunar 
tables,  of  the  value  of  twenty-four  dollars,  one  shaving  box  and 
glass,  of  the  value  of  five  dollars,  and  one  chart,  of  the  value  of 
one  dollar,  he  the  said  J.  P.  M.,  otherwise  called  J,  M.,  otherwise 
called  P.  M.,  then  and  there  knowing  the  same  to  be  stolen,  con- 
trary, &c.,  and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

{For  final  count,  see  ante,  14,  15,  16,  181  n.,  239  n.) 

(422)  Larceny.     Form  in  use  in  New  York. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  one  leathern  bucket,  of  the 
value  of  three  dollars,  of  the  goods,  chattels,  and  property  of  one 
J.  B.,  then  and  there  being  found,  feloniously  did  steal,  take,  and 
carry  away,  to  the  great  damage  of  the  said  J.  B.,  against,  &c., 
and  against,  &c.     {Conclude  as  in  book  1,  chapter  3.) 

(423)  Same  in  Pennsylvania. (^j^ 

That  A.  M.,  late,  &c.,  on,  &c.,  one  mare,  of  the  value  of  one 

hundred  dollars,  of  the  goods  and  chattels  and  property  of  J.  C, 

{j)  Com.  V.  M'lMickle,  Sup.  Ct.  Pa.,  July  T.  1828,  No.  48.     This  case  went 

389 


(426)  OFFENCES  AGAINST  PROPERTT. 

then  and  there  being  found,  then  and  there  feloniously  did  steal, 
take,  and  carry  away,  contrary,  &c.,  and  against,  &c.  (  Conclude 
as  in  book  1,  chapter  3.) 

(424)  Second  count.     Receiving  stolen  goods. 

That  the  said  A.  M.,  on,  &c.,  at,  &c.,  the  goods  and  chattels 
and  property  aforesaid,  by  some  ill-disposed  persons  (to  the  jurors 
aforesaid  yet  unknown)  then  lately  before  feloniously  stolen, 
taken,  and  carried  away,  unlawfully,  unjustly,  and  for  the  sake 
of  wicked  gain,  did  receive  and  have,  the  said  A.  M.  then  and 
there  well  knowing  the  goods  and  chattels,  moneys,  and  property 
last  mentioned,  to  have  been  feloniously  stolen,  taken,  and  car- 
ried away,  contrary,  &c.,  and  against,  &c.  ( Conclude  as  in  hook 
1,  chapter  3.) 

(425)  Same  in  New  Jersey. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  one  hat,  of  the  value  of  one 
dollar,  then  and  there  being  found,  unlawfully  did  steal,  take,  and 
carry  away,  contrary,  &c.,  and  against,  &c.  ( Conclude  as  in 
book  1,  chapter  3.) 

(426)  Same  in  South  Carolina. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  one  woollen  jacket,  of  the 
value  of  two  dollars,  of  the  proper  goods  and  chattels  of  J.  K., 
then  and  there  being  found,  feloniously  did  steal,  take,  and  carry 
away,  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

Second  count. 

That  the  said  A.  B.,  on,  &c.,  at,  &c.,  one  other  woollen  jacket, 
of  the  value  of  two  dollars,  of  the  goods  and  chattels  of  a  cer- 
tain person  to  the  jurors  aforesaid  unknown,  then  and  there  being 
found,  feloniously  did  steal,  take,  and  carry  away,  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

up  to  the  Supreme  Court,  after  conviction  in  the  Quarter  Sessions  of  Delaware 
County,  apparently  for  the  purpose  of  testing  the  propriety  of  joining  a  count  for 
the  felony  of  larceny,  with  a  count  for  the  misdemeanor  of  receiving  stolen  goods. 
The  judgment  on  the  verdict  was  sustained.  The  form  in  the  text  is  the  one 
ordinarily  used  in  practice  in  Pennsylvania.  See  also  Com.  v.  Vandyke,  March 
term,  1828,  No.  32,  where  the  same  point  was  ruled.     See  Wh.  C.  L.  §  414. 

390 


LARCENY.  (430) 

(427)  Same  in  Michigan. 
That  J.  K.,  &c.,  on,  &c.,  at,  &c.,  one  gelding,  of  the  value  of 
one  hundred  and  twenty-five  dollars,  of  the  goods  and  chattels 
of  one  J.  B.,  then  and  there  being,  feloniously  did  steal,  take,  and 
lead  away  ;  against,  &c.,  and  against,  &c.  (  Conclude  as  in  book 
1,  chapter  3.) 

(428)  Bank  note  in  North  Carolina. (Je) 

That  T.  B.,  &c,,  on,  &c.,  at,  &c.,  one  twenty  dollar  bank  note, 
issued  by  the  President  and  Directors  of  the  Bank  of  a 

bank  duly  chartered  and  authorized  by  the  State  of  North  Caro- 
lina,(/)  of  the  value  of  twenty  dollars,  of  the  goods  and  chattels, 
moneys,  and  property  of  A.  B.,  then  and  there  being  found,  then 
and  there  feloniously  did  steal,  take,  and  carry  away,  contrary, 
&c.,  and  against,  &c.     {Conclude  as  in  book  1,  chapter  3.) 

(429)  Bank  note  in  Pennsylvania. (^m') 

That  T.  B.,  on,  &c.,  at,  &c.,  one  promissory  note  for  the  pay- 
ment of  money,  commonly  called  a  bank  note,  purporting  to  be 
issued  by  the  ( president  and  directors  of  the  bank  of,  Sj^c,  as  the 
case  may  be),  for  the  payment  of  five  dollars,  being  still  due  and 
unpaid,  of  the  value  of  five  dollars,  of  the  goods  and  chattels, 
moneys,  and  property  of  A.  B.,  then  and  there  being  found,  then 
and  there  feloniously  did  steal,  take,  and  carry  away,  contrary, 
&c.,  and  against,  &c.     {Conclude  as  in  book  1,  chapter  3.) 

(430)  Bank  note  in  Connecticut.(n) 
That  T.  B.,  &c.,  on,  &c.,  at,  &c.,  thirteen   bills  against  the 

(Ic)  Tliis  form  seems  required  by  the  court.     State  v.  Rout,  3  Hawks,  618. 

(/)  Or,  in  another  case,  "  a  certain  twenty  dollar  bank  note,  issued  by  the 
President  and  Directors  of  the  Bank  of  Newbern."  State  r.  Williamson,  3 
Murpli,  216.  It  is  now  proper  to  aver  that  the  note  was  issued  by  the  bank  in 
question,  and  that  the  bank  was  duly  authorized,  &c.  State  v.  Brown,  8  Jones, 
L.  (N.  C),  443. 

{in)  Tliis  form  is  the  one  usually  employed,  and  is  in  conformity  with  the 
views  of  the  Supreme  Court.  M'Laughlin  v.  Com.,  4  R.  464 ;  Com.  v.  M'Dowell, 
1  Browne,  359;  Stewart  v.  Com.,  4  S.  &  R.  194;  Spangler  v.  Com.,  3  Binn. 
533. 

(n)  This  form  was  sanctioned  in  Salisbury  v.  State,  6  Conn.  101. 

391 


(432)  OFFENCES  AGAINST  PROPERTY. 

Hartford  Bank,  each  for  the  payment  and  of  the  value  of  ten 
dollars,  issued  by  such  bank,  being  an  incorporated  bank  in  this 
State,  of  the  value  of  one  hundred  and  thirty  dollars,  of  the 
goods  and  chattels,  moneys,  and  property  of  A.  B.,  then  and 
there  being  found,  then  and  there  feloniously  did  steal,  take,  and 
carry  away,  contrary,  &c.,  and  against,  &c.  ( Conclude  as  in  book 
1,  chapter  3.) 

(431)  Banh  note  in  Tennessee.Qo^ 

That  defendant,  on,  &c.,  at,  &c.,  one  bank  note  of  the  Planters* 
Bank  of  Tennessee,  payable  on  demand  at  the  Mechanics'  and 
Traders'  Bank  at  New  Orleans,  of  the  value  and  denomination 
of  five  dollars,  the  bank  note,  personal  goods,  and  chattels  of  J. 
B.,  then  and  there  being,  feloniously  did  steal,  take,  and  carry 
away,  against,  &ic.,  and  against,  &c.  (Conclude  as  in  book  1, 
chapter  3.) 

(431|)  Stealing  hank  notes  of  unknown  batiks. (^o'^^ 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  sundry  bank  bills,  of  some 
banks  respectively  to  the  said  juroi-s  unknown,  of  the  amount 
and  value  in  all  of  thirty-eight  dollars,  of  the  property,  goods, 
and  chattels  of  one  C.  D.,  in  his  possession  then  and  there  being, 
feloniously  did  steal,  take,  and  carry  away,  &c.  (Conclude  as  in 
book  1,  chapter  3.) 

(432)  Larceny  in  dwelling-house  in  daytime.     Mass.  Rev.  Sts.  ch. 

126,  §  14.(^) 

That  defendant,  at,  &c.,  on,  &c.,  one  certain  original  book  of 
accounts  concerning  money  due,  of  the  value  of  twenty  dollars, 
one  receipt,  release  of  defeasance,  containing  an  acquittance  of 

(o)  State  V.  Hite,  9  Yerg.  358. 

(o')  This  was  sustained  in  Com.  ?'.  Grimes,  10  Gray,  470. 

(p)  Com.  V.  Williams,  9  Met.  273.  In  this  case  it  was  held,  that  a  memo- 
randum book,  kept  by  a  person  who  works  for  a  tailor  by  the  piece,  and  in 
which  entries  are  made  of  the  names  of  the  persons  owning  the  garments  worked 
upon,  and  the  prices  of  the  work,  is  a  "  book  of  accounts  for  or  concerning  money 
or  goods  due,  or  to  become  due,  or  to  be  delivered,"  within  the  Revised  Statutes, 
ch.  12G,  §  17,  and  is  the  subject  of  larceny.  And  sucli  book,  given  by  a  tailor  to 
the  person  who  works  for  him,  for  the  purpose  of  such  entries  being  made  therein, 
is  the  property  of  such  person,  and  not  the  tailor. 

392 


LARCENY.  (434) 

money  due,  of  the  value  of  six  dollars,  and  sundry  bank  bills, 
amounting  together  to  the  sum  of  eleven  dollars,  and  of  the 
value  of  eleven  dollars,  of  the  goods  and  chattels  of  one  A.  B., 
in  the  dwelling-house  of  one  C.  D.  there  situate,  in  the  said  A. 
B.'s  possession  then  and  there  being,  did  then  and  there,  in  the 
said  dwelling-house  (in  the  day  time), (p^)  feloniously  5-teal,  take, 
and  carry  away,  against,  &c.,  and  contrary,  &c.  ( Conclude  as  in 
hook  1,  chapter  3.) 

(433)  Breaking  and  entering  a  vessel  in  the  night-time,  and  coynmit- 
ting  a  larceny  therein^  under  3Iass.  Rev.  Sts.  ch.  126,  §  11.  (^) 

That  C.  D,,  &c.,  on,  &c,,  at,  &c.,  a  certain  vessel  of  one  A,  B., 
called  the  "  Sally,"  of  Boston,  within  the  body  of  the  said  County 
of  S.  then  and  there  lying  and  being,  in  the  night-time  of  the 
said  day,  did  break  and  enter,  and  one  trunk,  of  the  value  of  five 
dollars,  and  [Jiere  state  the  kind  and  value  of  each  article),  of  the 
goods  and  chattels  of  one  E.  F.,  in  the  trunk  aforesaid  then  and 
there  contained,  and  in  the  vessel  aforesaid  then  and  there  being 
found,  in  the  night-time  of  the  said  day,  feloniously  did  steal, 
take,  and  carry  away,  in  the  vessel  aforesaid,  against,  &c.,  and 
contrary,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(434)  Breaking  and  entering  a  shop  in  the  night,  and  committing  a 
larceny  therein,  under  Mass.  Rev.  iSfs.  ch.  12t),  §  11. (s) 

That  C.  D.,  &c.,  on,  &c.,  at,  &c.,  the  shop  of  one  A.  B.,  there 
situate,  in  the  night-time  of  the  same  day,  did  break  and  enter, 
and  sundry  bank  bills,  amounting  together  to  the  sum  of  one 
hundred  dollars,  and  of  the  value  of  one  hundred  dollars,  and 
(here  insert  all  the  articles  stolen,  alleging  the  kind,  number,  and 

(pi)  Where  the  larceny  is  in  the  night,  it  falls  within  Stat.  1843,  ch.  1,  §  1, 
and  the  averment  in  brackets  is  to  be  left  out,  and  ("in  the  night-time  of  the 
said  day  ")  inserted  in  its  place.     See  Tr.  &  H.  Prec.  346. 

(q)  Davis'  Prec.  143. 

(s)  See  Tr.  &  H.  Prec.  344;  Davis'  Prec.  142.  The  coupling  in  this  form  of 
the  "  breaking  and  entering  "  with  the  larceny,  is  not  duplicity.  Com.  v.  Tuck, 
20  Pick.  356.  It  was  first  held  essential,  however,  that  the  averment  in  brackets, 
which  was  omitted  by  Mr.  Davis,  should  be  inserted  ;  lb. ;  but  the  court  since 
appears  to  have  settled  into  a  contrary  doctrine.  Devoe  v.  Com.,  3  Met.  316  ; 
Phillips  V.  Com.,  lb.  588.  Tliis  indictment,  it  is  intimated  in  the  latter  case, 
would  be  good  under  Revised  Statutes,  ch.  126,  §  11. 

893 


(436)  OFFENCES    AGAINST   PROPERTY. 

value  of  each),  of  the  goods  and  chattels  of  the  said  A.  B.,  then 
and  there  in  the  shop  aforesaid  being  found,  feloniously  did  steal, 
take,  and  carry  away,  in  the  shop  aforesaid,  against,  &c.  [Con- 
clude as  in  book  1,  chapter  3.) 

(435)  Larceny  by  the  cashier  of  a  hank.    Mass.  Stat.  1846,  ch.  171, 

That  A.  B.,  late  of,  &c.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  at  D.,  in  the  County  of  N.,  the  said   A.  B. 

then  and  there  being  an  officer,  to  wit,  the  cashier,  of  the  Dedham 
Bank,  a  corporation  then  and  there  duly  and  legally  established, 
organized,  and  existing  under  and  by  virtue  of  the  laws  of  this 
commonwealth,  as  an  incorporated  bank,  did  feloniously  and 
fraudulently  convert  to  the  said  A.  B.'s  own  use  certain  money, 
to  a  certain  large  amount,  to  wit,  to  the  amount  and  sum  of 
one  hundred  thousand  dollars,  and  of  the  value  of  one  hundred 
thousand  dollars,  of  the  property  and  moneys  of  the  said  Pres- 
ident, Directors,  and  Company  of  the  Dedham  Bank,  being  in 
their  banking-house  there  situate  :  whereby  and  by  force  of  the 
statute  in  such  case  made  and  provided,  the  said  A.  B.  is  deemed 
to  have  committed  the  crime  of  larceny  in  said  bank.  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  that  the 
said  A.  B.,  then  and  there,  in  manner  and  form  aforesaid,  the 
aforesaid  money,  of  the  property  and  moneys  of  the  said  Pres- 
ident, Directors,  and  Company  of  the  Dedham  Bank,  feloniously 
did  steal,  take,  and  carry  away,  in  the  banking-house  aforesaid; 
against,  &c.,  and  contrary,  &c.  (Conclude  as  in  book  1,  chap- 
ter 3.) 

(436)  Breaking  and  entering  a  stable  in  the  night-time,  and  commit- 
ting a  larceny  therein.     Mass.  Stat.  1851,  ch.  156,  §  l.(^) 

That  C.  D.,  late  of,  &c.,  laborer,  on  the  first  day  of  June,  in  the 
year  of  our  Lord  wuth  force  and  arms,  at  B.  aforesaid,  in 

the  county  aforesaid,  a  certain  building,  to  wit,  the  stable,  of 
one  E.  F.,  there  situate,  in  the  night-time  of  said  day,  feloniously 
did  break  and  enter,  and  one  chaise,  of  the  value  of  one  hundred 
dollars,  one  saddle,  of  the  value  of  ten  dollars,  and  one  bridle,  of 
the  value  of  five  dollars,  of  the  goods  and  chattels  of  the  said  E. 
(a)  Tr.  &  H.  Prec.  341.  (/>)  Tr.  &  H.  Prec.  342. 

394 


LARCENY.  (437) 

F.,  then  and  there  in  the  stable  aforesaid  being  found,  then  and 
there,  in  the  night-time,  feloniously  did  steal,  take,  and  carry 
away,  in  the  stable  aforesaid ;  against,  &c.,  and  contrary,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(437)  Breaking  and  entering  a  sliop  in  the  night-time,  adjoining  to 
a  dwelling-house,  toith  intent  to  commit  the  crime  of  larceny, 
and  actually  stealing  therein.     Mass.  Stat.  1839,  ch.  31. (c) 

That  Joseph  H.  Josslyn,  late  of,  &c.,  on  the  first  day  of  Febru- 
ary, in  the  year  of  our  Lord  with  force  and  arms,  at  Wal- 
tham,  in  the  County  of  Middlesex,  the  shop  of  one  Charles  W. 
Fogg,  there  situate,  adjoining  to  a  certain  dwelling- house,(cZ)  in 
the  night-time,  did  break  and  enter,  with  intent  the  goods  and 
chattels  of  said  Fogg,  then  and  there  in  said  shop  being  found, 
feloniously  to  steal,  take,  and  carry  away  ;(e)  and  one  English 
gold  lever  watch,  of  the  value  of  one  hundred  dollars,  and  one 
gold  Lepine  watch,  of  the  value  of  one  hundred  dollars,  nine  old 
silver  watches,  each  of  the  value  of  ten  dollars,(/)  of  the  goods 
and  chattels  of  the  said  Charles  W.  Fogg,  then  and  there  in  the 
shop  of  said  Fogg  being  found,  then  and  there,  in  the  night-time, 
feloniously  did  steal,  take,  and  carry  away,  in  the  shop  aforesaid ; 
against  the  peace  of  said  commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

(c)  Tr.  &  H.  Prec.  343. 

(rf)  It  is  not  necessary  to  aver  that  tlie  shop  was  or  was  not  "  adjoining  to  a 
dwelHng-house."  Larned  v.  The  Commonwealth,  12  Metcalf,  240;  Devoe  v. 
The  Commonwealth,  3  Metcalf,  316.  See  Commonwealth  v.  Tuck,  20  Picker- 
ing, 356  ;  Rex  v.  Marshall,  1  Moody,  C.  C.  158. 

(e)  This,  say  Tr.  &  Heard,  is  a  sufficient  averment.  The  words  of  the  Stat. 
1839,  ch.  31,  are,  "with  intent  to  commit  the  crime  of  larceny."  But  it  is  not 
necessary  to  aver  the  intent  in  the  words  of  the  statute.  Josslyn  v.  The  Com- 
monwealth, G  Metcalf,  236. 

(/)  Where  an  indictment  for  breaking  and  entering  a  building,  with  intent 
to  steal  therein,  is  correctly  framed,  an  additional  charge,  that  the  defendant 
committed  a  larceny  therein,  though  defective,  and  such  as  would  not  of  itself 
be  a  sufficient  indictment  for  larceny,  is  no  cause  for  reversing  a  judgment  ren- 
dered on  a  general  verdict  of  guilty.  Larned  v.  The  Commonwealth,  12  Met- 
calf, 240. 

395 


(440)  OFFENCES   AGAINST   PROPERTY. 

(438)  Evtering  a  divell'mg-house  in  the  mght-time,  without  breaJcing^ 
some  persons  being  therein,  and  being  put  in  fear.  Mass.  Rev. 
Sts.  ch.  126,  §  12.(^) 

That  C.  D.,  late  of,  &c.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  with  force  and  arras,  at  D.,  in  the  County  of 

N.,  the  dwelling-house  of  A.  B.,  there  situate,  in  the  night-time 
of  said  day,  feloniously  did  enter,  without  breaking  the  same, 
with  intent  then  and  therein  to  commit  the  crime  of  larceny ;  one 
A.  B.,  and  M.,  his  wife,  then,  to  wit,  at  the  time  of  the  commit- 
ting of  the  felony  aforesaid,  lawfully  being  in  the  said  dwelling- 
house,  and  by  the  said  C.  D.  were  then  and  there  put  in  fear; 
against,  &c.,  and  contrary,  &c.  {Conclude  as  in  book  1,  chap- 
ter 3.) 

(439)  Breaking  and  entering  a  dwelling-house  in  the  daytime,  the 
oivner  being  therein,  and  being  put  in  fear.  Mass.  Rev.  Sts. 
ch.  126,  §  12.  (A) 

That  C.  D.,  late  of,  &c.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  with  force  and  arms,  at  D.,  in  the  County  of 

N.,  the  dwelling-house  of  one  A.  B.,  there  situate,  in  the  daytime, 
feloniously  did  break  and  enter,  with  intent  then  and  therein  to 
commit  the  crime  of  larceny;  the  said  A.  B.,  and  M.,  his  wife, 
then,  to  wit,  at  the  time  of  the  committing  of  the  felony  afore- 
said, lawfully  being  in  said  dwelling-house,  and  by  the  said  0. 
D.  were  then  and  there  put  in  fear;  against,  &c.,  and  contrary, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

(440)  Breaking  and  entering  a  city  hall,  and  stealing  therein  in  the 

night-time.     Mass.  Rev.  Sts.  ch.  123,  §  14. (z) 

That  John  Williams,  late  of,  &c.,  on  the  twelfth  day  of  No- 
vember, in  the  year  of  our  Lord  with  force  and  arras,  at 

(_(j)   Tr.  &  H.  Free.  345.  Ql)  Tr.  &  H.  Free.  345. 

(i)  Tr.  &  H.  Free.  347.  In  an  indictment  under  this  section  of  tlic  statute, 
for  breaking  and  entering  in  any  of  the  buildings  therein  mentioned,  tlie  amount 
or  value  of  the  property  stolen  is  immaterial.  And  it  is  a  sufficient  allegation 
as  to  the  stealing,  if  there  is  a  larceny  properly  and  technically  charged  of  any 
of  the  goods  alleged  in  the  indictment  to  be  stolen.  Commonwealth  v.  Wil- ' 
liams,  2  Gushing,  582. 

396 


LARCENY.  (442) 

Chailestovvn,  in  the  County  of  Middlesex  aforesaid,  the  City 
Hall  of  the  City  of  Charlestown,  in  said  county,  there  situate,  and 
erected  for  public  uses,  to  wit,  the  transaction  of  the  municipal 
business  of  said  City  of  Charlestown,  in  the  night-time  of  the 
said  day,  feloniously  did  break  and  enter,  and  ten  pieces  of  gold 
coin,  current  witliin  this  commonwealth  by  the  laws  and  usages 
thereof,  called  eagles,  of  the  value  of  ten  dollars  each,  ten  other 
pieces  of  gold  coin,  current  within  this  commonwealth  by  the 
laws  and  usages  thereof,  called  sovereigns,  of  the  value  of  five 
dollars  each,  of  the  goods  and  chattels  and  moneys  of  the  said 
City  of  Charlestown,  then  and  there  in  the  City  Hall  aforesaid 
being  found,  then  and  there,  in  the  night-time,  feloniously  did 
steal,  taUe,  and  carry  away,  in  the  City  Hall  aforesaid,  against, 
&c.,  and  contrary,  &c.     [Conclude  as  in  book  1,  chapter  3.) 

(441)  Stealing  in  a  building  that  is  on  fire.     31ass.  Rev.  Sts.  ch. 

126,  §  15.(y) 

That  C.  D.,  late  of,  &c.,  on  the  first  day  of  June,  in  the  year  of 
our  Lord  at  S.,  in  the  County  of  E.,  with  force  and  arms, 

one  gold  watch,  of  the  value  of  one  hundred  dollars,  one  gold 
ring,  of  the  value  of  ten  dollars,  and  one  gold  bracelet,  of  the 
value  of  twenty  dollars,  of  the  goods  and  chattels  of  one  E.  F., 
in  a  certain  building,  to  wit,  the  dwelling-house  of  the  said  E. 
F.,  there  situate,  then  and  there  being,  which  said  dwelling-house 
was  then  and  there  on  fire,  and  then  and  there  feloniously  did 
steal,  take,  and  carry  away,  in  the  dwelling-house  aforesaid, 
against,  &c.,  and  contrary,  &c.  [Conclude  as  in  book  1,  chap- 
ter 3.) 

(442)  Larceny/  from   the  person.     Rev.   Sts.   of  Mass.    ch.    126, 

§  16.(^) 

That  C.  D.,  late  of  L.,  in  the  County  of  M.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  with  force  and 

arms,  at  L.,  in  the  County  of  M.,  one  gold  watch,  of  the  value  of 
one  hundred  dollars,  of  the  goods  and  chattels  of  one  E.  P.,  then 
and  there,  from  the  person  of  the  said  E.  F.,  feloniously  did  steal, 

(;)  Tr.  &  H.  Prec.  348. 

(i)  Tr.  &  II.  Prec.  349.     See  Commonwealth  v.  Dimond,  3  Gushing,  235 ; 
Commonwealth  v.  Eastman,  2  Gray. 

397 


(444)  OFFENCES  AGAINST  PROPERTY. 

take,  and  carry  away,  against,  &c.,  and  contrary,  &c.  ( Conclude 
as  in  book  1,  chapter  3.) 

(443)  Larceny  of  real  property,     Mass.  Stat.  1851,  ch.  151. (i) 

That  C.  D.,  late  of  C,  in  the  County  of  M.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  with  force  and 

arms,  at  C,  in  the  County  of  M.,  fifty  pounds  weight  of  lead, 
each  of  the  value  of  ten  cents,  of  the  property  of  one  A.  B.,  and 
against  the  will  of  the  said  A.  B.,  then  and  there  being  parcel  of 
the  realty,  to  wit,  of  the  dwelling-house  of  the  said  A.  B.,  there 
situate,  wilfully  and  maliciously  did  rip,  cut,  and  break,  and  then 
and  there  did  take  and  carry  away  the  same,  with  intent  then 
and  there  the  same  feloniously  to  steal,  take,  and  carry  away ; 
whereby  and  by  force  of  the  statute  in  such  case  made  and  pro- 
vided, the  said  C.  D.  is  guilty  of  the  crime  of  simple  larceny. 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  C.  D.,  then  and  there,  in  manner  and  form  aforesaid, 
the  lead  aforesaid,  of  the  property  of  the  said  A.  B.,  feloniously 
did  steal,  take,  and  carry  away,  against,  &c.,  and  contrary,  &c. 
{Conclude  as  in  book  1,  chapter  3.) 

(444)  Larceny  and  embezzlement  of  public  property^  on  the  statute 
of  the  United  States  of  the  oOth  April,  1790,  §  26. (w) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  being  a  person  having  the 
charge  and  custody  of  certain  arms  and  other  ordnance  and  mu- 
nitions of  war  belonging  to  the  United  States,  certain  arms,  to 
wit,  ten  muskets,(a;)  of  the  value  of  one  hundred  dollars,  of  the 
property,  goods,  and  chattels  of  the  said  United  States,  in  the 
charge  and  custody  of  the  said  A.  B.  then  and  there  being,  wit- 
tingly, advisedly,  and  of  purpose  to  hinder  and  impede  the  service 
of  the  said  United  States,  and  for  lucre  and  gain,  did  embezzle, 
steal, (?/)  purloin,  and  convey  away,  against,  &c.,  and  contrary, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

(I)  Tr.  &  H.  Free.  349. 

(tc)  Davis'  Free.  149.  Gordon's  Digest,  art.  3641,  p.  714.  See  post, 
460,  &c. 

(x)  The  same  form  is  to  be  adopted  as  to  all  the  other  articles  and  property- 
enumerated  in  the  statute. 

( ^  )  This  section  of  the  statute  is  drawn  in  a  very  incorrect  manner.     The 

398 


LARCENY.  (445) 

(445)  Against  an  assistant  postmaster  for  stealing  money  which 
came  into  his  hands  as  assistant  postmaster,  on  the  act  of  dd 
March,  1825,  §  21.(2)  See  Gordon's  Digest,  art.  3611,  p. 
704. 
That  A.  M.,  &c.,  on,  &c.,  at,  &c.,  he  the  said  A.  M.  being  then 
and  there  a  person  employed  in  one  of  the  departments  of  the 
post-office  establishment  of  the  United  States  of  America,  to 
wit,  as  an  assistant  of  the  deputy-postmaster  of  the  post-office, 
legally  established  and  appointed  by  the  postmaster-general  of 
the  United  States,  within  the  said  town  of  Granby,  feloniously 
did  steal,  take,  and  carry  away  sundry  bank  notes,  amounting 
together  to  the  sum  of  two  hundred  and  seventy  dollars,  and  of 
the  value  of  two  hundred  and  seventy  dollars,  of  the  goods, 
chattels,  and  property  of  one  N.  P.  and  one  A.  M. ;  which  said 
bank  notes  were  then  and  there  feloniously  taken  and  stolen  as 
aforesaid  by  the  said  A.  M.  out  of  a  certain  letter,  which  came 
to  the  hands  and  possession  of  him  the  said  A.  M.  in  his  said 
capacity  and  employment  as  such  assistant  postmaster  as  afore- 
said, against,  &c.,  and  contrary,  &c.  ( Conclude  as  in  book  1, 
chapter  3.) 

word  purloin  is  used  in  the  former  part  of  it,  and  the  word  stolen  in  the  latter 
part  for  the  same  purpose. 

(z)  This  indictment  is  given  by  Mr.  Davis  in  his  Precedents,  p.  149,  and 
was  drawn  by  Professor  Ashmun  of  the  Law  School  in  Cambridge.  The  case 
was  twice  tried  without  obtaining  a  verdict.  See  more  fully  for  this  class  of 
cases,  post,  1112. 

399 


OFFENCES  AGAINST  PROPERTY. 


CHAPTER  VI. 

RECEIVING  STOLEN  GOODS.(J) 

(450)   General  frame  of  indictment. 

(452)  Against  receiver  of  stolen  goods.     Mass.  Rev.  Sts.  ch.  126,  §  20. 

(453)  Same  in  New  York. 

(454)  Same  in  I'ennsylvania. 

(455)  Against  a  receiver  of  embezzled  property.     Mass.  Stat.,  1853,  ch. 

184. 

(/J)  For  offence  generally,  see  Wh.  C.  L.  as  follows  :  — 

A.  Statutes. 

United  States. 

Receiving  stolen  goods,  §  1870. 
Massac^^usetts. 

Receiving  stolen  goods,  §  1871. 

First  conviction  of  offence  in  preceding  section,  §  1872. 

Conviction  for  buying,  receiving,  &c.,  stolen  goods,  §  1873. 

Jurisdiction  of  courts  in  regard  to  trial  of  offence,  §  1874. 

Not  necessary  to  prove  the  conviction  of  thief,  §  1875. 
New  York. 

Receiving  stolen  goods,  §  1876. 

Not  necessary  to  prove  that  principal  had  been  convicted,  §  1877. 

Trial  of  offence,  §  1878. 
Pennsylvania.  «;■; 

Receiving  stolen  goods,  &c.,  §  1879. 

How  such  cases  are  to  be  prosecuted,  §  1880. 

Conviction  of  principal  felon  not  necessary,  §  1880. 

Conviction  a  bar  to  subsequent  prosecution,  §  1880. 
Virginia. 

Receiving  stolen  goods,  §  1884. 
Ohio. 

Receiving  stolen  goods  of  value  of  thirty-five  dollars  and  upward, 
§  1885. 

Receiving  stolen  bank  bills,  bills  of  exchange,  &c.,  §  1886. 

Concealing   stolen   goods  of  less  value  then  thirty-live   dollars, 
§  1887. 

B.  Offenck  Genkkai-ly. 

I.   In  what  the  offence  consists,  §  1888. 
II.  Jndiclment,^  1899. 

400 


* 


RECEIVING   STOLEN   GOODS.  (450) 

(456)  Receiving  stolen  goods  from  some  unknown  person,  in  Pennsyl- 

vania. 

(457)  Same  in  South  Carolina. 

(458)  Same  in  Tennessee. 

(459)  Soliciting  a  servant  to  steal,  and  receiving  the  stolen  goods. 

(450)    General  frame  of  indictment.(a) 

That  A.  B.,  in  the  county  aforesaid,  one  silver  tankard,  of  the 
value  of  two  pounds,  of  the  goods  and  chattels(6)  of  one  J.  M,, 
before  then  feloniously  stolen, (c)  taken,  and  carried  away,  (felo- 
niously)(c?)  did  receive  and  have  (he  the  said  A.  B.  then  and  there 

(a)  This  offence,  so  far  as  it  may  be  considered  as  a  corollary  of  larceny,  is 
treated  of,  ante,  415,  note.  The  form  in  the  text,  with  the  accompanying  notes, 
though  based  on  the  English  statute,  is  useful  for  reference  generally  ;  that  stat- 
ute having  been  substantially  reenacted  throughout  the  Union. 

(6)  A  variance  in  this  particular  will  be  fatal.  People  v.  Wiley,  3  Hill,  N. 
Y.  R.  194.  If,  however,  as  in  larceny,  the  crime  be  established  in  respect  to 
only  a  single  article,  though  the  indictment  describe  several,  the  defendant  may 
be  convicted.  Thus  where,  on  the  trial  of  an  indictment  which  misdescribed  a 
part  of  the  goods,  but  contained  a  sufficient  description  of  the  residue,  the  jury 
were  instructed  by  the  court  below  that  there  was  no  misdescription  whatever, 
and  a  general  verdict  of  guilty  was  rendered.  It  was  held  on  review  that  the 
erroneous  instruction  constituted  no  ground  for  a  new  trial,  inasmuch  as  it  ap- 
peared by  the  bill  of  exceptions  that  the  question  of  the  defendant's  guilt  was 
identical  in  respect  to  the  whole  of  the  goods,  he  having  received  them,  if  at 
all,  from  the  same  person  by  a  single  act.  People  v.  Wiley,  3  Hill,  N.  Y.  R. 
194.     See  ante,  Wh.  C.  L.  §§  353-63. 

When  the  indictment  states  the  larceny  to  have  been  committed  by  some 
persons  to  the  jurors  unknown,  it  is  no  objection  that  the  grand  jury  at  the 
same  assizes  find  a  bill  for  the  principal  felony,  against  J.  S.  R.  v.  Bush,  R.  & 
R.  372. 

(c)  An  indictment  under  the  Tennessee  statute,  against  receiving  property 
knowing  the  same  to  be  stolen,  need  not  give  the  name  of  the  principal  felon 
(Swaggerty  v.  State,  9  Yerg.  338) ;  and  the  same  rule  generally  obtains.  Rex  v. 
Jervis,  6  C.  &  P.  156  ;  State  v.  Smith,  37  Mo.  58.  It  is  not  essential  in  such 
case,  to  aver  that  the  principal  felon  or  thief  had  been  convicted.  lb.  An  indict- 
ment charging  that  a  certain  evil  disposed  person  feloniously  stole  certain  goods, 
and  that  C.  D.  and  E.  F.  feloniously  received  the  said  goods  knowing  them  to 
be  stolen,  was  holden  good  against  the  receivers,  as  for  a  substantive  felony. 
R.  V.  Caspar,  2  Mood.  C.  C.  101 ;  9  C.  &  P.  289. 

The  time  and  place,  when  and  where  the  goods  were  stolen,  need  not  be 
stated  in  the  indictment.     State  v.  Holford,  2  Blackf.  103  ;  1  Leach,  109,  477. 

(f/)  Of  course  where  the  offence  is  a  misdemeanor,  as  in  Pennsylvania,  the 
word  "  feloniously  "  must  be  omitted. 

VOL.  I.  — 26  401 


(453)  OFFENCES  AGAINST  PROPERTY. 

well  knowing  the  said  goods  and  chattels  to  have  been  feloni- 
ously stolen,  taken,  and  carried  away),  against,  &c.,  and  against, 
&c.     [Conclude  as  in  book  1,  chapter  3.) 
[For  form  in  U.  S.  courts,  see  ante,  421.) 

(452)  Against  receiver  of  stolen  goods.     Mass.  Rev.  Sts.  ch.  126, 

§  20. 

That  Co  D.,  late,  &c.,  on,  &c.,  at,  &c.  (one  hat,  of  the  value, 
&c.,  here  enumerate  the  articles,  and  the  vabie  of  each),  of  the 
goods  and  chattels  of  one  E.  F.,  then  and  there  in  the  possession 
of  the  said  E.  F.  being  found,  feloniously  did  steal,  take,(e)  and 
carry  away;  against  the  peace  of  said  commonwealth,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  provided. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  Ihat  G.  H.,  late  of,  &c.,  laborer,  afterwards,  to  wit,  on 
the  first  day  of  July,  in  the  year  of  our  Lord  with  force 

and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  the  goods  and 
chattels  aforesaid,  so  as  aforesaid  feloniously  stolen,  taken,  and 
carried  away,(ei)  feloniously  did  receive  and  have,  and  did  then 
and  there  aid  in  the  concealment  of  the  same,  the  said  G.  H. 
then  and^  there  well  knowing  the  said  goods  and  chattels  to  have 
been  feloniously  stolen,  taken,  and  carried  away ;  against,  &c., 
and  contrary,  &c.     (  Conclude  as  in  book  1,  chapter  3.) 

(453)  Same  in  New  York. 

That  O.  M.  H.,  &c.,  at,  &c.,  on,  &c.,  one  mare,  of  the  value  of 
eighty  dollars,  of  the  goods  and  chattels  of  one  B.  M.,  by  a  cer- 
tain ill-disposed  person,  feloniously  did  receive  and  have,  he  the 
said  O.  M.  H.  then  and  there  well  knowing  the  said  goods  and 
chattels  to  have  been  feloniously  stolen,  taken,  carried,  and  led 
away,  to  the  great  damage,  &c.(/)  [Conclude  as  in  book  1, 
chapter  3.) 

(e)  In  Massachusetts,  "  take  and  cany  away,  "  here  and  at  (e^)  are  now  sur- 
plusage.   Com.  V.  Lakeman,  5  Gray,  82. 

(/)  Hopkins  v.  People,  12  Wend.  76.  It  is  not  necessary  to  allege  that  any 
consideration  passed  between  the  receiver  and  the  thief. 

402 


RECEIVING   STOLEN   GOODS.  (455) 

(454)  Same  in  Pennsylvania. 
That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  one  hat,  of  the  value  of  five 
dollars,  of  the  goods  and  chattels,  moneys,  and  property  of  E. 
F.,  by  C.  D.  then  lately  before  feloniously  stolen,  taken,  and  car- 
ried away,  unlawfully,  unjustly,  and  for  the  sake  of  wicked  gain 
did  receive  and  have  (the  said  A.  B.  then  and  there  well  know- 
ing the  goods  and  chattels,  moneys,  and  property  aforesaid,  to 
have  been  feloniously  stolen,  taken,  and  carried  away),  contrary, 
&c.,  and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(455)  Against  a  receiver  of  embezzled  property.     Mass.  Stat.  1853, 

ch.  184.(^) 

That  C.  D.,  late  of  F.,  in  the  County  of  M.,  trader,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  at  F.  aforesaid,  in  the 

county  aforesaid,  being  then  and  there  employed  as  clerk  of  one 
J.  N.,  the  said  C.  D.  not  being  then  and  there  an  apprentice  to 
the  said  J.  N.,  nor  a  person  under  the  age  of  sixteen  years,  did, 
by  virtue  of  his  said  employment,  then  and  there,  and  whilst  he 
was  so  employed  as  aforesaid,  take  into  his  possession  certain 
money,  to  a  large  amount,  to  wit,  to  the  amount  of  fifty  dollars, 
of  the  moneys  of  the  said  J.  N.,  his  employer,  and  the  said  money 
then  and  there  feloniously  did  embezzle  and  fraudulently  convert 
to  his  own  use,  without  the  consent  of  the  said  J.  N. ;  whereby, 
and  by  force  of  the  statute  in  such  case  made  and  provided,  the 
said  C.  D.  is  deemed  to  have  committed  the  crime  of  simple 
larceny.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  C.  D.  then  and  there,  in  manner 
and  form  aforesaid,  the  said  money,  the  property  of  the  said  J. 
N.,  his  said  employer,  from  the  said  J.  N.  feloniously  did  steal, 
take,  and  carry  away;  against  the  peace  of  said  commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  G.  H.,  late  of  F.,  in  the  county  aforesaid, 
laborer,  afterwards,  to  wit,  on  the  first  day  of  July,  in  the  year  of 
our  Lord  at  F.  aforesaid,  in  the  county  aforesaid,  the  money 

aforesaid,  so  as  aforesaid  feloniously  embezzled,  feloniously  did 
receive  and  have,  and  did  then  and  there  aid  in  concealing  the 
(g)  Tr.  &  H.  Free.  450. 

403 


(457)  OFFENCES    AGAINST   PROPERTY. 

same,  the  said  G.  H.  then  and  there  well  knowing  the  said  money 
to  have  been  embezzled  as  aforesaid ;  against,  &c.,  and  contrary, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

(456)  Receiving  stolen  goods  from  some  unknown  person,  in  JPenn- 

sylvania.Qi) 

That  M.  J.,  late  of  the  said  county,  spinster,  being  a  person  of 
evil  name  and  fame,  and  of  dishonest  conversation,  and  a  com- 
mon buyer  and  receiver  of  stolen  goods,  on,  &c.,  at,  &c.,  one 
hundred  yards  of  fine  thread  lace,  of  the  value  of  twenty-five 
pounds,  of  the  goods  and  chattels  of  J.  S.,  by  a  certain  ill-dis- 
posed person  to  the  jurors  aforesaid  yet  unknown  then  lately 
before  feloniously  stolen,  of  the  same  ill-disposed  person,  unlaw- 
fully, unjustly,  and  for  the  sake  of  wicked  gain,  did  receive  and 
have,  she  the  said  M.  J.  then  and  there  well  knowing  the  said 
goods  and  chattels  to  have  been  feloniously  stolen,  to  the  great 
damage  of  the  said  J.  S.,  contrary,  &c.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chapter  3.) 

(457)  Same  in  South  Carolina. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  one  tin  kettle,  of  the  value  of 
one  dollar,  of  the  proper  goods  and  chattels  of  E.  F.,  by  C.  D. 
then  lately  before  feloniously  stolen,  taken,  and  carried  away,  of 
and  from  the  said  C.  D.,  unlawfully,  unjustly,  and  for  the  sake  of 
wicked  gain,  did  buy  and  receive,  the  said  A.  B.  then  and  there 
well  knowing  the  aforesaid  goods  and  chattels  to  have  been  felo- 
niously stolen,  taken,  and  carried  away;  against,  &c.,  and  against, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

Second  count. 

That  the  said  A.  B.,  on,  &c.,  at,  &c.,  one  other  tin  kettle,  of  the 
value  of  one  dollar,  of  the  proper  goods  and  chattels  of  the  said 
E.  F.,  by  a  certain  evil  disposed  person,  to  the  jurors  aforesaid 
unknown,  then  lately  before  feloniously  stolen,  taken,  and  carried 
away,  of  and  fi:om  the  said  evil  disposed  person,  unlawfully,  un- 
justly, and  for  the  sake  of  wicked  gain,  did  buy  and  receive,  the 
said  A.  B.  then  and  there  well  knowing  the  aforesaid  goods  and 

Qi)  Drawn  by  Wm.  Bradford,  Esq.,  at  the  time  attorney-general  of  the 
commonwealth. 

404 


''i 


RECEIVING    STOLEN    GOODS.  (459) 

chattels  to  have  been  feloniously  stolen,  taken,  and  carried  away ; 
against,  &c.,  and  against,  &c.  {Conclude  as  in  book  1,  chap- 
ter 3.) 

(458)  Same  in  Tennessee.(i) 

That  S.  D.  S.,  &c.,  on,  &c.,  at,  &c.,  two  sides  of  upper  leather, 
of  the  value  of  five  dollars,  of  the  goods  and  chattels  of  one  M. 
H.  B.,  then  lately  before  feloniously  and  fraudulently  stolen,  did 
then  and  there  receive  and  have,  he  the  said  S.  then  and  there 
well  knowing  the  said  goods  and  chattels  to  have  been  feloni- 
ously and  fraudulently  stolen,  taken,  and  carried  away,  with  in- 
tent to  deprive  the  true  owner  thereof,(y)  contrary  &c.,  and 
against,  &c.     (  Conclude  as  in  book  1,  chapter  3.) 

(459)  Soliciting  a  servant  to  steals  and  receiving  the  stolen  goods. Qk') 

That  E.  D.,  &c.,  on,  &c.,  at,  &c.,  falsely,  subtly,  and  unlawfully 
did  solicit,  entice,  and  persuade  one  M.  P.,  servant  of  W.  S.,  of 
the  same  county,  yeoman,  secretly  and  clandestinely  to  take  and 
embezzle  divers  goods  and  chattels  of  the  said  W.  S.,  and  to 
give  and  deliver  such  goods  and  chattels  to  her  the  said  E.,  and 
that  the  said  E.  afterwards,  the  said  third  day  of  May,  in  the 
year  aforesaid,  at  the  county  aforesaid,  two  pounds  of  coffee,  one 
quarter  of  a  pound  of  candles,  one  pound  of  soap,  ten  pounds 
of  flour,  one  pound  of  bread,  half  a  pint  of  rum,  of  the  value 
of  six  shillings  and  sixpence,  lawful  money  of  Pennsylvania,  of 
the  goods  and  chattels  of  the  said  W.  S.,  by  the  said  M.,  then 
lately  before  on  the  same  day  and  year  above  mentioned,  by  the 
solicitation,  incitement,  and  persuasion  of  the  said  E.,  taken  and 
embezzled,  then  and  there  falsely,  knowingly,  subtly,  and  unlaw- 
fully did  receive,  obtain,  and  have,  of  and  from  the  said  M.,  to 
the  great  damage  of  the  same  W.  S.,  to  the  evil  example  of  all 
others  in  the  like  case  offending,  and  against,  &c.  ( Conclude  as 
in  book  1,  chapter  3.) 

(i)  This  form  was  held  good  in  Swaggerty  v.  State,  9  Yerg.  338. 
(j)  This  allegation  is  vital.     Hurell  v.  State,  5  Humph.  68. 
(k)  See  for  "  Attempts  to  commit  Offences,"  post,  10-16,  &c. 

405 


OFFENCES   AGAINST   PROPERTY. 


CHAPTER  VII. 

EMBEZZLEMENT.{a) 

(460)  Against  officer  of  the  United  States  Mint,  for  embezzling  money 

intrusted  to  him. 

(461)  Against  same  person  for  same,  charging  him  with  being  a  person 

employed  at  the  Mint. 

(462)  Against  auctioneer  for  embezzlement,  under  the  Mass.  Rev.  Sts. 

ch.  126,  §  30. 

(a)  (^Emhezzlement  at  common  laiv.')  Tn  general  an  indictment  for  a  mere 
breach  of  trust,  not  amounting  to  larceny,  will  not  lie  at  common  law.  But 
where  this  breach  of  trust  is  committed  by  a  public  officer  misapplying  the 
funds  with  which  he  is  intrusted  for  the  benefit  of  the  public,  he  may  be  indicted 
for  a  misdemeanor  in  respect  of  his  public  duty.  Thus  an  indictment  will  lie 
at  common  law  against  overseers  for  embezzlement,  giving  false  accounts,  or 
not  accounting  (see  forms  in  3  Chit.  C.  L.  701,  et  seq.},  and  against  surveyors 
of  highways  for  embezzlement  of  gravel. 

See  for  embezzlement  generally,  Wh.  C.  L.  as  follows  :  — 
A.  Statutes. 

United  States. 

Embezzling  instruments  of  war  and  victuals  of  the  soldiers  of  U. 

S.,  §  1905. 
Punishment,  §  1906. 
Massachusetts. 

Embezzling   bullion,  money,  note,  bill,  obligation,  &e.,  of  incorpo- 
rated bank,  §  1907. 
Embezzlement  of  clerk  in  treasury  of  commonwealth,  §  1908. 
Embezzlement  of  officer,  agent,  clerk,  or  servant,  &c.,  §  1909. 
Embezzlement  of  carrier,  §  1910. 
Sufficient   in    prosecution    to     allege    embezzlement   to   certain 

amount,  without  particulars,  §  1911. 
Prosecution  for  embezzlement  of  real  or  personal  estate,  §  1912. 
Embezzlement  of  officer  of  incorporated  bank,  §  1913. 
Sufficient  to  allege  in  indictment,  fraudulent  conversion  with  such 

intent  to  certain  amount,  without  particulars,  §  1914. 
Prosecution  for  taking  or  receiving  of  bullion,  money,  note,  bill, 

&c.,  §  1915. 
Embeziement  of  town,  city,  or  county  officei',  §  1916. 

406 


EMBEZZLEMENT.  (460) 

(463)  Second  count  larceny. 

(464)  General  form  of  indictment  in  New  York. 

(465)  Second  count  larceny. 

(466)  Against  the  president  and  cashier  of  a  bank  for  an  embezzlement. 

Rev.  Sts.  of  Mass.  ch.  126,  §  17, 

(467)  Against  a  clerk  for  embezzlement.     Rev.  Sts.  of  Mass.  ch.  126, 

§29. 

(468)  Against  a  carrier  for  embezzlement.     Rev.  Sts.  of  Mass.  ch.  126, 

§  30. 

(469)  Embezzlement  by  clerk  or  servant,  in  England. 

(460)  Against  officer  of  the  U.  S.  Mint,  for  embezzling  money  in- 
trusted to  Mm. 

That  R.  H.,  &c.,  on,  &c.,  at,  &c.,  then  and  there  being  an  offi- 
cer of  the  United  States*  charged  with  the  safe-keeping,  transfer, 
and  disbursement  of  public  moneys,  unlawfully  and  feloniously 

(^Analysis  of  Embezzlement  in  Wh.  C.  i.) 
New  York. 

Embezzlement  of  clerk,  servant,  officer,  or  agent,  &c.,  §  1917. 

Embezzlement  of  evidence  of  debt,  §  1918. 

Buying  or  receiving  embezzled  money,  goods,  right  in  action,  &c., 

§  1919, 
Embezzlement  of  carrier,  §  1920. 
Pennsylvania. 

Embezzlement  of  officer  of  commonwealth,  §  1921. 

Lien  shall  not  exist  if  person  is  previously  aware  of  actual  owner, 

§  1923. 
Embezzlement  of  consignee  or  factor,  §  1924. 
Embezzlement  of  officer  of  commonwealth,  §  1925. 
Embezzlement  of  persons  engaged  in  transporting  coal,  iron,  lum- 
ber, merchandise,  &c.,  §  1926. 
Embezzlement  of  persons  connected  with  mutual  savings  fund, 
land,  or  building  association,  &c.,  §  1927. 
Virginia. 

Embezzlement  of  director  or  officer,  or  officer  of  public  trust,  &c., 

§  1928. 
Embezzlement  of  carrier,  §  1929. 

Altering  or  omitting  to  make  entry  in  account,  &c.,  §  1930. 
Ohio. 

Clerk  or  servant,  &c.,  embezzling,  using,  or  secreting,  &c.,  money, 

goods,  &c.,  §  1931. 
Embezzlement  of  evidence  of  debt,  &c.,  §  1932. 
Buying  or  receiving  embezzled  goods,  money,  &c.,  §  1933. 
Embezzlement,  &c.,  of  goods,  &c.,  by  a  common  carrier,  §  1934. 
B.  Offence  Generally,  §  1935. 

407 


(460)  OFFENCES  AGAINST  PROPERTY. 

did  convert  to  his  own  use,  and  embezzle  a  portion  of  the  said 
public  moneys  intrusted  to  him  the  said  R.  H.  for  safe-keeping, 
transfer,  and  disbursement,  to  wit,  f  the  following  coins  of  gold 
which  had  been  struck  and  coined  at  the  Mint  of  the  United 
States  (stating-  the  coins),  altogether  of  the  value  of  twenty-three 
thousand  two  hundred  and  thirty-eight  dollars  and  sixty-one 
cents,  the  said  coins  of  gold  and  the  said  coins  of  silver  and  the 
said  coins  of  copper  being,  at  the  time  of  committing  the  felony 
aforesaid,  the  property  of  the  United  States  of  America,  con- 
trary, &c.,  and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

Second  count. 

( Same  as  first,  except  inserting  at  *  the  averment) :  "  to  wit,  a 

clerk  of  the  Mint  of  the  United  States  for  the  treasurer  of  the 

said  mint." 

Third  count. 

That  the  said  R.  H.,  on,  &c.,  at,  &c.,  then  and  there  being  an 
officer  of  the  United  States,  having  the  safe-keeping  and  dis- 
bursement of  the  ordinary  fund  for  paying  the  expenses  of  the 
Mint  of  the  United  States,  and  charged  with  the  safe-keeping, 
transfer,  and  disbursement  of  public  moneys,  unlawfully  and 
feloniously  did  convert  to  his  own  use  and  embezzle  a  portion  of 
the  public  money  intrusted  to  him  the  said  R.  H.  for  safe-keep- 
ing, transfer,  and  disbursement,  to  wit,  the  following  other  coins 
of  gold,  which  had  been  struck  and  coined  at  the  Mint  of  the 
United  States  {stating  coins,  and  concluding  as  in  first  count). 

Fourth  count. 

That  the  said  R.  H.,  on,  &c.,  at,  &c.,  then  and  there  being  an 
agent  of  the  United  States,  charged  with  the  safe-keeping,  trans- 
fer, and  disbursement  of  public  moneys,  unlawfully  and  feloni- 
ously did  convert  to  his  own  use  and  embezzle  a  portion  of  the 
public  moneys  intrusted  to  him  the  said  R.  H.  for  safe-keeping, 
transfer,  and  disbursement,  to  wit,  {proceeding  as  in  first  count 

fromj). 

Fifth  count. 

That  the  said  R.  H.,  on,  &c.,  at,  &c.,  then  and  there  being  an 
agent  of  the  United  States,  to  wit,  a  clerk  of  the  Mint  of  the 
United  States  for  the  treasurer  of  the  said  mint,  charged  with 
408 


EMBEZZLEMENT.  (460) 

the  safe-keeping,  transfer,  and  disbursement  of  public  moneys, 
unlawfully  and  feloniously  did  convert  to  his  own  use  and  em- 
bezzle a  portion  of  the  public  moneys  intrusted  to  him  the  said 
R.  H.  for  safe-keeping,  transfer,  and  disbursement,  to  wit,  the 
following  other  coins  of  gold,  which  had  been  struck  and  coined 
at  the  Mint  of  the  United  States  {stating  coins,  and  concluding  as 

in  first  count). 

Sixth  count. 

That  the  said  R.  H.,  on,  &c.,  then  and  there  being  an  agent  of 
the  United  States,  having  the  safe-keeping  and  disbursement  of 
the  ordinary  fund  for  paying  the  expenses  of  the  Mint  of  the 
United  States,  and  charged  with  the  safe-keeping,  transfer,  and 
disbursement  of  public  moneys,  unlawfully  and  feloniously  did 
convert  to  his  own  use  and  embezzle  a  portion  of  the  public 
moneys  intrusted  to  him  the  said  R.  H.  for  safe-keeping,  transfer, 
and  disbursement,  to  wit,  the  following  other  coins  of  gold,  which 
had  been  struck  and  coined  at  the  Mint  of  the  United  States 
{stating  coins,  and  concluding  as  in  first  count). 

Seventh  count. 

That  the  said  R.  H.,  on,  &c.,  at,  &c.,  then  and  there  being  a 
person  charged  by  law  with  the  safe-keeping,  transfer,  and  dis- 
bursement of  the  public  moneys,  unlawfully  and  feloniously  did 
convert  to  his  own  use  and  embezzle  a  portion  of  the  public 
moneys  intrusted  to  him  the  said  R.  H.  for  safe-keeping,  transfer, 
and  disbursement,  to  wit,  the  following  other  coins  of  gold,  which 
had  been  struck  and  coined  at  the  Mint  of  the  United  States 
{stating  coins,  and  concluding  as  in  first  count). {h) 

{For  final  count,  see  ante,  14,  15,  16,  181,  n.,  239,  n.) 

(b)  U.  S.  V.  Hutcliinson,  reported  in  Pa.  L.  J.  for  June,  1848.  The  prisoner 
having  been  convicted,  a  new  trial  was  granted  on  grounds  whicli,  as  will  be 
seen,  do  not  affect  the  character  of  the  indictment.  Kane,  .T.  :  "  By  the  act  of 
Congress  of  18th  January,  1837,  it  is  enacted  that  'the  officers  of  the  Mint  of  the 
United  States  shall  be  a  director,  a  treasurer,  a  melter  and  refiner,  a  chief  coiner, 
and  an  engraver,'  and  these  are  to  be  appointed  by  the  Pi-esident  with  the  advice 
and  consent  of  the  Senate.  Of  the  treasurer  so  appointed,  it  is  required  among 
other  things,  §  2,  that  '  he  shall  receive  and  safely  keep  all  moneys  which  shall 
be  for  the  use  and  support  of  the  mint ;  shall  keep  all  the  current  accounts  of  the 
mint,  and  pay  all  moneys  due  from  the  mint,  on  warrants  from  the  director.' 
The  act  then  provides  for  the  appointment  of  assistants  to  certain  of  the  officers, 

409 


(461)  OFFENCES  AGAINST  PROPERTY. 

(461)  Against  same  person  for  same,  charging  him  with  being  a 
person  employed  at  the  mint. 

That  R.  H,,  &c.,  on,  &c.,  at,  &c.,  then  and  there  being  a  person 
employed  at  the  Mint  of  the  United  States,  with  force  and  arms, 

and  of  clerks  for  the  du*ector  and  for  the  treasurer,  in  case  tliey  shall  be  needed  ; 
they  are  to  be  appointed  by  the  director  of  the  mint,  with  the  approbation  of 
the  President  of  the  United  States;  the  assistants  'to  aid  their  principals,*  and 
the  clerks  to  '  perform  such  duties  as  shall  be  prescribed  for  them  by  the  direc- 
tor;' §3. 

"  The  prisoner  was  appointed  under  this  act  in  the  year  1840,  to  be  a  clerk 
for  the  treasurer  of  the  mint,  and  among  the  duties  prescribed  for  him  by  the 
director,  was  the  charge  of  the  ordinary  or  contingent  fund,  by  which  name  the 
moneys  for  the  ordinary  uses  of  the  mint  were  designated.  In  this  capacity  he 
received  the  moneys  of  that  fund  as  they  were  remitted  or  transferred  to  the 
treasurer  of  the  mint  by  the  orders  of  the  treasury  department,  and  paid  them 
out  as  warrants  were  drawn  upon  the  treasurer  of  the  mint  by  the  director, 
making  the  proper  entries  of  such  receipts  and  payments  in  the  books  of  account 
of  the  mint.  He  had  the  key  of  a  closet  in  which  the  moneys  of  this  fund  were 
kept,  but  the  outer  key  of  the  vault,  of  which  the  closet  formed  part,  was  in  the 
charge  of  another  person.  The  books  of  account  were,  all  of  them,  kept  in  the 
name  and  on  behalf  of  the  treasurer ;  the  acknowledgments  for  all  moneys  re- 
ceived were  made  by  the  treasurer  personally  ;  and  the  charges  for  such  moneys 
were  entered  against  him,  and  all  vouchers  for  payments  were  taken  in  the 
treasurer's  name,  and  he  received  credit  for  such  payment.  The  name  or  inter- 
vention of  the  clerk  did  not  appear  in  any  of  the  books,  vouchers,  or  accounts, 
either  in  the  mint  or  in  the  accounting  department  at  Washington,  with  which 
it  corresponded. 

"  At  the  end  of  the  year  1847,  it  was  ascertained  that  a  large  sum  of  money 
was  missing  from  the  contingent  fund  ;  and  the  prisoner  having  been  arrested, 
was  indicted  for  embezzlement  under  the  acts  of  Congress  of  13th  August,  1841, 
and  7th  August,  1846.     He  was  tried  in  the  District  Court  and  found  guilty. 

"  I  had  serious  doubts  while  the  case  was  before  the  jury,  whether  it  fell  prop- 
erly within  the  provisions  of  the  acts  of  Congress ;  and  as  the  question  was  of  the 
first  importance,  I  was  desirous  that  it  should  be  discussed  more  fully  than  it 
could  be  at  bar.  I  therefore  charged  against  the  prisoner  upon  the  several  points 
of  law,  announcing  my  purpose,  as  the  case  was  one  in  which  the  Circuit  and 
District  Court  have  concurrent  jurisdiction,  to  solicit  the  advice  and  aid  of  Judge 
Grier  upon  the  hearing  of  a  rule  for  new  trial,  if  the  verdict  should  make  such  a 
rule  proper. 

"  He  acceded  to  my  wish,  and  the  whole  subject  has  been  revised  before  us  by 

the  district  attorney  and  the  counsel  for  the  prisoner  in  the  most  ample  manner. 

The  result  is  an  unhesitating  concurrence  of  opinion  between  my  learned  brother 

and  myself,  that  the  verdict  cannot  stand.     We  regard  the  history  and  spirit  of 

410 


EMBEZZLEMENT.  (461) 

unlawfully  and  feloniously  did  embezzle  certain  coins  of  gold, 
which  had  been  struck  and  coined  at  the  said  mint,  to  wit  [stat- 
these  acts  of  Congress,  as  well  as  their  phraseology,  altogether  conclusive  upon 
the  question. 

"  At  the  common  law,  the  party  who  by  the  confidence  of  another  is  intrusted 
with  the  possession  of  his  property,  cannot  commit  the  crime  of  larceny  by  ap- 
propriating it  to  his  own  use.  The  fiduciary  character  of  the  delinquent  forms 
his  defence,  for  the  criminal  law,  until  it  Avas  modified  by  statute,  took  no  cog- 
nizance of  breaches  of  trust. 

"  At  the  same  time,  it  distinguished  between  the  legal  possession  of  property, 
such  as  the  very  existence  of  a  trust  implies,  and  that  mere  charge  or  super oision, 
which  is  devolved  on  a  servant  or  clerk.  The  servant  having  a  hare  charge,  to 
use  the  words  of  the  law,  became  guilty  of  theft  by  a  fraudulent  conversion. 

"  Thus,  on  the  one  hand,  a  butler  who  had  charge  of  his  master's  plate,  the 
shepherd  who  watched  over  his  sheep,  and  the  shop-boy  who  attended  behind 
his  counter,  might  be  convicted  of  larceny,  if  they  converted  to  their  own  use 
their  master's  property.  While,  on  the  other  hand,  the  attorney  who  pillaged 
his  principal,  the  guardian  who  defrauded  his  ward,  and  the  officer  who  embez- 
zled public  moneys  which  the  law  had  confided  to  him,  were  not  answerable  as 
for  crime.     (See  the  cases  in  Wh.  C.  L.  §  1935,  &c.) 

"  The  United  States  courts  have  no  common  law  jurisdiction,  that  is  to  say, 
they  derive  their  only  power  to  try,  convict,  or  punish,  from  the  Constitution, 
and  the  laws  made  in  pursuance  of  it.  The  jurisdiction  of  offences  wliich  are 
cognizable  at  common  law  reside  in  the  state  courts  alone,  even  though  the  gen- 
eral government  may  be  the  party  immediately  aggrieved  by  the  misdeed  com- 
plained of 

"  Until  the  year  1840,  the  Congress  of  the  United  States  seems  to  have  been, 
in  general,  content  with  the  protection  which  the  laws  of  the  several  States  gave 
to  the  public  property  within  their  limits.  The  integrity  of  subordinates,  who 
were  not  themselves  intrusted  with  public  money,  though  they  might  from  their 
position  have  a  certain  charge  or  custody  of  it,  was  guarded  of  course  by  the 
common  law  and  the  local  statutes,  as  administered  by  the  state  courts.  Under 
these,  such  a  subordinate,  whether  called  by  the  name  of  watchman,  servant, 
clerk,  or  assistant,  might  be  punished  criminally  for  a  fraudulent  conversion  to 
his  own  use  of  the  moneys  of  the  general  government.  But  the  higher  officers, 
the  heads  of  departments,  the  treasurers  of  the  United  States  and  of  the  mint, 
the  collectors  of  customs,  land  officers,  and  others,  depositaries  of  important  pub- 
lic trusts,  though  required  in  some  instances  to  give  security  for  their  official 
fidelity,  were  punishable  only  by  impeachment  before  the  Senate  of  the  United 
States. 

"  Several  very  large  defaults  having  occurred,  however,  on  the  part  of  import- 
ant public  officers  of  the  revenue,  it  was  thought  necessary  to  protect  the  treasury 
by  additional  safeguards.  On  the  4th  of  July,  1840,  an  act  of  Congress  was 
passed  '  to  provide  for  the  collection,  safe-keeping,  transfer,  and  disbursement  of 
the  public  revenue.'  This  act  created  and  defined  the  crime  of  embezzlement, 
and  made  it  applicable  to  all  those  officers  who  were  charged  by  the  provisions 

411 


(461)  OFFENCES  AGAINST  PROPERTY. 

ing  the  coins)*  the  said  coins  of  gold  and  the  said  coins  of  silver 
and  the  said  coins  of  copjier  being,  at  the  time  of  the  commit- 

of  the  act  itself  witli  the  '  eafe-kecping,  transfer,  or  disbursements  of  public 
moneys.'  As  to  all  others,  officers  as  well  as  servants  or  clerks,  except  those 
connected  with  the  post-office  (to  whom  it  was  specially  extended),  it  left  the 
law  unchanged. 

"The  act  of  1840  was  repealed  on  the  13th  of  August  of  the  following  year, 
but  the  provisions  respecting  embezzlements  were  reenacted  in  a  slightly  modi- 
fied form,  so  as  to  include  among  those  who  might  become  subject  to  its  penal- 
ties, all  '  officers  charged  with  the  safe-keeping,  transfer,  or  disbursement  of  the 
public  moneys,  or  connected  with  the  post-office  department.  But  as  to  all  but 
officers  so  charged,  it  left  the  law  as  it  stood  before  the  year  1840. 

"  The  act  of  1846  followed.  This  substantially  reconstituted  the  treasury  sys- 
tem which  had  been  rescinded  in  1841,  but  made  further  provision  also  for  the 
punishment  of  embezzling.  Its  terms  are  somewhat  broader,  perhaps,  than  those 
of  the  two  preceding  acts,  for  they  apply  to  '  all  officers  and  other  persons  charged 
by  this  act  or  any  other  act  with  the  safe-keeping,  transfer,  and  disbursement  of 
public  moneys.'  But  its  spirit  and  objects  are  the  same ;  and  the  detailed  pro- 
visions of  its  several  sections  have  obvious  reference  to  persons  intrusted  by  some 
act  of  Congress  with  the  legal  possession  of  public  money,  not  to  those  subordi- 
nates, who,  not  having  been  intrusted  with  such  possession,  could  be  punished  for 
a  fraudulent  conversion,  as  felons,  without  any  congressional  legislation.  The  act 
throughout  applies  not  to  clerks,  workmen,  or  other  servants,  but  to  the  legally 
authorized  custodiers  of  public  moneys,  the  'Jiscal  agents'  recognized  as  such  at 
the  treasury  of  the  United  States,  charged  there  with  receipts,  and  credited  with 
disbursements ;  in  a  word,  to  officers  or  agents  '  intrusted  '  by  law  or  under  law 
with  the  possession  of  public  money,  and  bound  to  account  for  it. 

"  The  duties  Avhich  it  enjoins,  the  safeguards  and  checks  which  it  creates,  the 
direct  accountability  which  it  prescribes  and  enforces,  the  evidence  it  appeals  to 
as  establishing  the  fact  of  delinquency  —  even  the  allowance  it  makes  for  certain 
official  expenses  —  all  together  stamp  on  it  this  limited  character.  Thus  it  re- 
quires of  the  officer  that  he  shall  keep  an  accurate  entry  of  each  sum  that  he 
receives,  and  each  payment  or  transfer  that  he  makes  ;  obviously  with  reference 
to  the  account  he  is  to  render  of  his  receipts  and  disbursements  at  the  treasury 
department ;  it  makes  him  punishable  if  he  transmits  to  the  treasurer  a  false 
voucher,  or  a  voucher  that  does  not  truly  represent  a  payment  actually  made  ; 
a  transci'ipt  from  the  treasury  books  showing  a  balance  against  him  is  made 
sufficient  evidence  of  his  indebtedness ;  '  a  draft,  warrant,  or  order,  drawn  by 
the  treasury  department  upon  him,'  and  not  paid,  is  the  primary  proof  of  his 
embezzlement ;  and  provision  is  made  for  the  necessary  clerk  hire,  and  other 
expenses  of  a  large  class,  at  least  of  the  officers  included  within  its  terms. 

"It  needs  no  argument  to  show,  that  these  enactments  are  without  just  appli- 
cation to  a  person  who  is  merely  a  clerk  himself,  who  is  unknown  to  the  treas- 
ury department,  who  is  neither  charged  nor  credited  with  public  moneys  there 
or  elsewhere,  who  transmits  no  vouchers,  because  he  renders  no  account,  against 
whom  therefore  no  treasury  transcript  can  ever  be  produced,  on  whom  no  treas- 

412 


EMBEZZLEMENT.  (461) 

ting  of  the  felony  aforesaid,  the  property  of  the  United  States  of 
America,  contrary,  &c.,  and  against,  &c.     ( Conclude  as  in  book 

1,  chapter  3.) 

Second  count. 

That,  &c.,  the  said  R.  H.,  then  and  there  being  a  person  em- 
ployed at  the  Mint  of  the  United  States,  to  wit,  a  clerk  of  the  said 
mint  for  the  treasurer  of  the  said  mint,  with  force  and  arms,  un- 
lawfully and  feloniously  did  embezzle  certain  other  coins  of  gold, 
struck  and  coined  at  the  said  mint,  to  wit  {stating  the  coins,  and 
concluding'  as  in  first  count  from  *). 

{For  final  count,  see  ante.  17,  18,  181,  w.,  239,  n.) 

ury  draft,  warrant,  or  order  can  be  drawn  under  any  circumstances,  and  to  whom 
neither  the  act  of  1846  nor  any  other  act  has  ever  intrusted  public  moneys,  either 
personall}'  or  by  official  designation. 

"  The  prisoner  was  such  a  person.  In  point  of  fact  he  was  never  in  legal  pos- 
session of  the  moneys  he  has  abstracted.  They  were  moneys  of  the  United 
States,  in  which  he  had  no  special  or  qualified  property,  which  had  been  in- 
trusted to  the  safe-keeping  of  the  treasurer  of  the  mint  by  the  express  language  of 
an  act  of  Congress,  and  which  could  not  be  withdrawn  from  his  legal  custody  and 
charge  except  by  waiTant  of  an  appropriate  officer  in  the  form  designated  by  law. 

"  We  do  not  understand  that  the  prescription  of  the  clerk's  duties  by  the 
director  was  intended,  or  supposed,  to  interfere  with  this  official  charge  of  the 
treasurer.  Had  it  been  so,  there  would  have  been  some  record,  some  book  entry, 
some  memorandum  at  least  in  the  mint,  showing  the  character  if  not  the  amount 
of  liabilities,  from  which  the  treasurer  could  claim  to  be  relieved  by  the  clerk's 
assumption  of  them.  There  would  have  been  some  recognition  of  the  fact  at  the 
treasury  in  Washington,  if  the  clerk  had  been  constituted  a  receiving,  safe-keep- 
ing, or  disbursing  officer ;  he  would  have  been  called  on,  as  by  law  all  such  oflS- 
cers  are  called  on,  to  render  his  accounts,  to  declare  from  time  to  time  what 
moneys  he  had  received,  to  exhibit  vouchers  for  his  disbursements,  and  thus  to 
define  the  extent  of  his  liabilities  to  the  United  States. 

"  But  whatever  may  have  been  the  terms,  or  the  usage,  or  the  understanding 
which  proposed  to  set  forth  the  prisoner's  duties  as  a  clerk,  they  could  not  ab- 
solve the  treasurer  from  that  legal  custody  with  which  the  act  of  Congress  and 
his  commission  had  invested  him.  The  clerk's  possession,  whatever  it  was,  was 
in  law  the  possession  of  the  treasurer;  and  the  clerk's  liabilities,  therefore,  upon 
the  facts  found  by  the  jury,  are  those  of  a  servant  merely,  not  of  a  person  either 
'  charged  '  or  '  intrusted  by  law,'  with  the  safe-keeping,  transfer,  or  disbursement 
of  the  public  moneys. 

"  The  case  is  one  to  which  the  statute  does  not  extend,  and  the  rule  must 
therefore  be  made  absolute." 

The  indictments  in  the  text  were  prepared  by  Mr.  Pettit,  late  district  attorney 
in  Philadelphia. 

413 


(^462)  OFFENCES  AGAINST  PROPERTY. 

(462)  Against  auctioneer  for  embezzlement,  under  the  Mass.  Rev. 
Sts.  ch.  126,  §  30.(c) 

That  T.  S.,  &c.,  on,  &c.,  at,  &c.,  solicited  employment  as  an 
auctioneer  of  and  for  E.  G.  of  said   Boston,  merchant,  and  in 

(c)  Com.  V.  Stearns,  2  Met.  343.  Dewey  J. :  "The  questions  raised  in  the 
present  case  require  a  construction  of  the  Rev.  Sts.  ch.  136,  §  29,  and  are^  of 
no  inconsiderable  importance  in  their  consequences,  in  marking  the  distinction 
between  tliose  acts  which  are  to  be  denominated  as  felonies,  punishable  by  igno- 
minious punishments,  and  those  defaults  in  the  payment  of  money  or  in  the  dis- 
charge of  contracts,  for  which,  however  unjustifiable,  the  law  authorizes  no 
other  mode  of  redress  than  a  civil  action  by  the  party  aggrieved. 

"  The  principles  of  the  common  law  not  being  found  adequate  to  protect 
general  owners  against  the  fraudulent  conversion  of  property  by  persons  stand- 
in  «■  in  a  certain  fiduciary  relation  to  those  who  were  the  subjects  of  their  pecu- 
lations, certain  statutes  have  been  enacted,  as  well  in  England  as  in  this  com- 
monwealth, creating  new  criminal  oflences  and  annexing  to  them  their  proper 
punishments.  The  consequence  is,  therefore,  that  many  acts  which  formerly 
were  denominated  mere  breaches  of  trust,  and  subjected  the  party  to  a  civil 
action  only,  have  now  become  cognizable  before  our  criminal  courts  as  offences 
ao-ainst  the  commonwealth.  The  statutes  necessarily  require  a  careful  discrim- 
ination in  their  application  to  the  various  cases  that  may  arise,  and  it  may  be 
found  somewhat  difficult  to  mark  out,  with  entire  precision,  the  line  of  discrim- 
ination between  the  acts  punishable  as  crimes  under  these  statutes,  and  those 
that  may  not  be  embraced  by  them,  while  they  may  yet  present  strong  cases  of 
breach  of  good  faith  and  violation  of  the  confidence  reposed  in  the  party  guilty 
of  the  breach  of  trust. 

"  The  court  have,  therefore,  very  carefully  considered  the  facts  disclosed  in 
the  case  now  before  us,  and  the  result  to  which  we  have  arrived  will  be  stated, 
after  disposing  of  a  preliminary  objection  that  was  suggested  by  the  counsel 
for  the  defendant,  though  apparently  not  much  relied  on. 

"  This  objection  was,  that  it  is  necessary,  in  order  to  bring  the  offence  within 
the  llev.  Sts.  ch.  1 26,  §  29,  that  the  property  embezzled  should  belong  to  some 
other  person  than  the  master  or  principal,  Avhose  servant  or  agent  is  charged 
with  the  embezzlement ;  inasmuch  as  the  statute  provides  that  '  if  any  clerk, 
ao-ent  or  servant,  &c.,  shall  embezzle  or  fraudulently  convert  to. his  own  use, 
without  the  consent  of  his  employer  or  master,  any  money  or  property  of 
another,'  &c. 

"  A  similar  objection  appears  to  have  been  overruled  by  the  Supreme  Court 
of  the  State  of  New  York,  in  an  indictment  on  the  Revised  Statutes  of  that 
State,  vol.  2,  p.  678,  §  59  ;  a  statute  from  which  ours  seems  substantially  to  have 
been  framed.  The  words  there  used  are,  '  belonging  to  any  other  person ; '  but 
the  court  held  that  these  words,  as  used  in  the  statute,  meant  any  other  person 
than  he  who  is  guilty  of  embezzlement.  People  v.  Hennessey,  15  Wend.  147. 
A  different  construction  from  this  would  be  inconsistent  with  the  earlier  course 

414 


EMBEZZLEMENT.  (462) 

consideration  that  said  G.  would  employ  him  as  his  agent  for  the 
sale  of  cotton  goods,  undertook  and  engaged  to  serve  said  G.  as 
his  agent  in  that  employment,  and  stipulated  to  pay  over  to  said 
G.,  promptly  and  without  delay,  the  cash  proceeds  of  said  cot- 
ton goods,  at  eight  cents  per  yard,  which  said  S.  should  sell  for 
him  at  public  auction ;  and  afterwards,  at  said  Boston,  said  G. 
delivered  to  and  intrusted  to  said  S.,  in  said  employment  as  his 
agent,  sundry,  to  wit,  four,  bales  of  cotton  goods,  to   be  sold  as 
aforesaid,  and  the  cash  proceeds  thereof,  at  eight  cents  for  each 
yard,  to  be  promptly  paid  by  said  S.  to  said  G.,  and  within  three 
days  after  the  sale  of  each  of  said  bales  of  goods,  and  by  virtue 
of  said  employment,  and  as  agent  of  said  G.  as  aforesaid,  said 
S.  took  and  received  said  goods,  and  sold  the  same  for  cash,  and 
received  in  payment  therefor  the  money  and  price  and  proceeds 
thereof,  to  wit,  the  sum  of  two  hundred  and  seventy-two  dollars, 
which  money  and  proceeds  of  said  goods  came  into  the  hands 
and  possession  of  said  S.  by  virtue  of  said  employment,  and  as 
the  agent  and  servant  of  said  G.,  under  the  trust  and  agreement 
aforesaid  ;  and  the  jurors,  &c.,  on  their  oaths  aforesaid,  do  fur- 
ther present,  that  the  said   T.  S.,  afterwards,  to  wit,  on,  &c.,  at, 
&c.,  then  and.there  having  in  his  possession  the  said  money  and 
proceeds  of  said  goods  sold  by  him  for  said  G.,  the  same  money 
and  proceeds  being  the  property  and  money  of  said   G.,  in  the 
hands  of  said  S.,  as  his  agent  and  servant  as  aforesaid,  and  which 
same  money  and  proceeds  came  into,  the  hands  and  possession 
of  said  S.  by  virtue  of  his  employment  as  agent  of  said  G.,  and 
of  the  trust  aforesaid,  to  wit,  the  sum  of  two  hundred  and  sev- 
enty-two dollars,  he  the  said   S.  then   and   there  unlawfully  and 
fraudulently  embezzled  and  converted  the  same  to  his  own  use, 
and  took  and  secreted  the  same  with  intent  to  embezzle  and  con- 
vert the  same  to  his  own  use,  without  consent  of  said  G.,  his  said 
employer,  the  same  being  the  money  and  property  of  said  G., 
which  came  to  the  possession  of  said  S.,  and  was  under  his  care 

of  legislation  on  this  subject  (see  Stat.  1834,  ch.  186),  and  -would  leave  unprovided 
for  all  cases  of  embezzlement,  by  servants  or  agents,  of  the  property  of  their 
masters  or  their  principals.  We  are  of  opinion  that  that  offence,  made  pun- 
ishable by  the  Revised  Statutes  of  this  commonwealth,  ch.  126,  §  29,  was  not 
intended  to  be  restricted  in  the  manner  suggested  by  the  counsel  for  the  de- 
fendant, but  may  properly  be  held  to  embrace  cases  of  embezzlement,  by  ser- 
vants or  agents,  of  the  property  of  their  masters  or  principals." 

415 


(465)  OFFENCES  AGAINST  PROPERTY. 

by  virtue  of  said  employment;  and  by  said  embezzlement,  con- 
version, and  secreting  of  the  same  money  and  property  as  afore 
said,  and  by  force  of  the  statute  in  such  case  made  and  provided,' 
said  S.  is  deemed  to  have  committed  the  crime  of  simple  larceny. 

(463)  Second  count.     Larceny. 

That  said  S.,  on,  &c.,  at,  &c.,  the  same  money  and  proceeds 
aforesaid,  of  the  proper  money  and  property  of  said  G.,  in  his 
possession  as  aforesaid,  feloniously  did  steal,  take,  and  carry 
away,  against,  &c.,  and  against,  &c.  ( Conclude  as  in  book  1, 
chapter  3.) 

[For  indictment  against  factor  for  converting  principal's  fund  to 
his  own  use,  ^c,  imder  Pennsylvania  statute,  see  post,  519.] 

(464)    General  form  of  indictment  in  New  York. 

That  A.  B.j  &c.,  on,  &c.,  at,  &c.,  was  employed  in  the  capacity 
of  a  clerk  and  servant  to  one  C.  D.,  and  as  such  clerk  and  ser- 
vant was  intrusted  to  receive,  &c.  {slating-  the  nature  of  the  trust), 
and  being  so  employed  and  intrusted  as  aforesaid,  the  said  A. 
B.,  by  virtue  of  such  employment,  then  and  there  did  receive 
and  take  into  his  possession  {staling  the  subject  of  the  embezzle- 
ment), for  and  on  account  of,  &c.,  his  said  master  and  employer  ; 
and  that  the  said  A.  B.,  on  the  day  and  year  last  aforesaid,  with , 
force  and  arms,  at  the  ward,  city,  and  county  aforesaid,  fraud- 
ulently and  feloniously  did  take,  make  way  with,  and  secrete, 
and  did  embezzle  and  convert  to  his  own  use,  without  the  assent 
of  the  said  C.  D.,  his  master  and  employer,  the  said,  &c.,  of  the 
goods,  chattels,  personal  property,  and  money  of  the  said  C.  D., 
which  said  goods,  chattels,  personal  property,  and  money  had 
come  into  his  possession,  and  under  his  care,  by  virtue  of  his 
being  such  clerk  and  servant  as  aforesaid,  to  the  great  damage 
of  the  said  C.  D.,  &c.     (  Conclude  as  in  book  1,  chapter  3.)  _^ 

(465)  Second  count.     Larceny. 

That  the  said  A.  B,,  on,  &c.,  at,  &c.,  of  the  goods,  chattels,  and 
personal  property  of  one  C.  D.,  then  and  there  being  found,  felo- 
niously did  steal,  take,  and  carry  away,  to  the  great  damage  of 
the  said  C.  D.,  against,  &c.,  and  against,  &c.  ( Conclude  as  in 
book  1,  chapter  3.) 
416 


EMBEZZLEMENT.  (466) 

(466)  Against  the  president  and  cashier  of  a  hank  for  an  embezzle- 
ment. Rev.  Sts.  of  Mass.  ch.  126,  §  27. (a) 
That  William  Wyman,  late  of  Charlestown,  in  the  County  of 
Middlesex,  gentleman,  and  Thomas  Brown  the  younger  of  that 
name,  of  the  same  place,  gentleman,  at  Charlestown  aforesaid, 
in  the  county  aforesaid,  on  the  first  day  of  April,  in  the  year  of 
our  Lord  the  said  Wyman,  then  and  there  being  one  of  the 

directors  and  president  of  the  Phoenix  Bank,  a  corporation  then 
and  there  duly  and  legally  established,  organized,  and  existing 
under  and  by  virtue  of  the  laws  of  the  said  commonwealth,  as 
an  incorporated  bank,  and  the  said  Brown  being  then  and  there 
cashier  of  the  said  bank,  did,  by  virtue  of  their  said  respective 
offices  and  employments,  and  whilst  the  said  Wyman  and  Brown 
were  severally  employed  in  their  said  respective  offices,  have, 
receive,  and  take  into  their  possession  certain  money  to  a  large 
amount,  to  wit,  to  the  amount  and  sum  of  two  hundred  and 
twenty  thousand  dollars,  and  of  the  value  of  two  hundred  and 
twenty  thousand  dollars,  divers  bills,  called  bank  bills,  amounting 
in  the  whole  to  the  sum  of  one  hundred  and  twenty  thousand 
dollars,  and  of  the  value  of  one  hundred  and  twenty  thousand 

(a)  Commonwealtli  v.  Wyman,  8  Metcalf,  247.  The  indictment  in  this  case, 
say  Messrs.  Train  &  Heard,  was  founded  on  the  Rev.  Sts.  of  Mass.  ch.  133, 
§  10,  Avhich  enact,  that  "In  any  prosecution  for  the  offence  of  embezzling  the 
money,  bank  notes,  checks,  drafts,  bills  of  exchange,  or  other  securities  for 
money,  of  any  person,  by  a  clerk,  agent,  or  servant  of  such  person,  it  shall  be 
sufficient  to  allege  generally,  in  the  indictment,  an  embezzlement  of  money  to  a 
certain  amount,  without  specifying  any  particulars  of  such  embezzlement,  and 
on  the  trial,  evidence  may  be  given  of  any  such  embezzlement,  committed 
within  six  months  next  after  the  time  stated  in  the  indictment ;  and  it  shall  be 
sufficient  to  maintain  the  charge  in  the  indictment,  and  shall  not  be  deemed 
a  variance,  if  it  shall  be  proved  that  any  money,  bank  note,  check,  draft,  bill 
of  exchange,  or  other  security  for  money,  of  such  person,  of  whatever  amount, 
was  fraudulently  embezzled  by  such  clerk,  agent,  or  servant,  within  the  said 
period  of  six  months."  In  Commonwealth  v.  Wyman  it  was  held,  that  this  sec- 
tion did  not  include  bank  officers,  and  that  a  bank  officer,  when  accused  of 
embezzlement,  must  be  charged  with  a  specific  act  of  fraud,  as  in  larceny  at 
common  law,  and  be  proved  guilty  of  the  specific  offence  charged,  and  that  not 
more  than  one  offence  could  be  alleged  in  one  count  of  the  indictment.  But 
by  Stat.  1856,  ch.  215,  the  provisions  of  this  section  are  extended  to  all  prosecu- 
tions of  a  similar  nature,  against  presidents,  directors,  cashiers,  and  other  offi- 
cers of  banks. 

VOL.  I. —27  417 


(467)  OFFENCES  AGAINST  PROPERTY. 

dollars,  divers  notes,  called  treasury  notes,  amounting  in  the 
whole  to  the  sum  of  seventy-five  thousand  dollars,  and  of  the 
value  of  seventy-five  thousand  dollars,  of  the  goods  and  chattels, 
property,  and  moneys  of  the  said  President,  Directors,  and  Com- 
pany of  the  Phoenix  Bank,(i)  in  their  banking-house  there  sit- 
uate, being ;  and  the  said  money,  bills,  and  notes  then  and  there 
unlawfully,  fraudulently,  and  feloniously  did  embezzle,  in  the 
banking-house  aforesaid.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  Wyman  and  Brown 
then  and  there,  in  manner  and  forin  aforesaid,  the  aforesaid 
money,  bills,  and  notes,  of  the  goods,  chattels,  property,  and 
moneys  of  the  said  President,  Directors,  and  Company  of  the 
Phoenix  Bank,  feloniously  did  steal,  take,  and  carry  away,  in  the 
banking-house  aforesaid;  against,  &c.,  and  contrary,  &c.  (Con- 
clude as  in  book  1,  chapter  3.) 

(467)  Against  a  clerk  for  embezzlement.     Rev.  Sts.   of  Mass.  ch. 
,    126,  §  29.(c?)  ♦ 

That  C.  D.,  late  of  B.,  in  the  County  of  S.,  trader,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  at  B.,  in  the  County 

(5)  The  ownership  may  be  laid  in  the  person  having  the  actual  or  construc- 
tive possession,  or  the  general  or  special  property  in  the  whole,  or  in  any  part 
of  the  property.  Rev.  Sts.  of  Mass.  ch.  133,  §  11  ;  Commonwealth  v.  Harney, 
10  Metcalf,  426  ;  Tr.  &  H.  Prec.  188. 

(c)  Tr.  &  H.  Prec.  189.  In  Massachusetts,  say  Messrs.  Train  &  Heard, 
it  has  been  held,  that  there  are  a  certain  class  of  cases  which  do  not  come 
within  the  statute.  Thus,  in  Commonwealth  v.  Libbey,  11  Mectalf,  64,  that  a 
person  who  is  employed  to  collect  bills  for  the  proprietors  of  a  newspaper  es- 
tablishment, and  converts  to  his  own  use  the  money  which  he  collects  for  them, 
is  not  such  an  agent  or  servant  as  is  intended  by  section  twenty-nine.  In  this 
case,  Dewey  J.  said  :  "  In  the  case  of  a  domestic  servant,  and  to  some  extent,  in 
the  case  of  a  special  agency,  the  right  of  property  and  the  possession  continue 
in  the  principal,  and  a  disposal  of  the  property  would  be  a  violation  of  the 
trust,  and  an  act  of  embezzlement.  But  cases  of  commission  merchants,  auc- 
tioneers, and  attorneys  authorized  to  collect  demands,  stand  upon  a  different 
footing ;  and  a  failure  to  pay  over  the  balance  due  to  their  employers,  upon 
their  collections,  will  not,  under  the  ordinary  circumstances  attending  such 
agency,  subject  them  to  the  heavy  penalties  consequent  upon  a  conviction  of  the 
crime  of  embezzlement."  And  in  Commonwealth  v.  Stearns,  2  Metcalf,  343,  it 
was  held  that  an  auctioneer,  who  receives  money  on  the  sale  of  his  employer's 
goods,  and  does  not  pay  it  over,  but  misapplies  it,  is  not  such  an  agent  or  ser- 
vant as  is  intended  by  the  statute  ;  whether  he  receives  the  goods  for  sale  in 

418 


EMBEZZLEMENT.  (468) 

of  S.,  being  then  and  there  the  clerk  of  one  J.  N.,  the  said  C.  D. 
not  being  then  and  there  an  apprentice  to  the  said  J.  N.,  nor  a 
person  under  the  age  of  sixteen  years,  did  then  and  there,  by 
virtue  of  his  said  employment,  have,  receive,  and  take  into  his 
possession  certain  money,  to  a  large  amount,  to  wit,  to  the 
amount  of  one  thousand  dollars,  and  of  the  value  of  one  thou- 
sand dollars,  of  the  property  and  moneys  of  the  said  J.  N.,  the 
said  C.  D.'s  said  employer,  and  the  said  C.  D.  the  said  money 
then  and  there  feloniously  did  embezzle,  and  fraudulently  convert 
to  his  own  use,  without  the  consent  of  the  said  J.  N.,  the  said 
C.  D.'s  employer;  whereby,  and  by  force  of  the  statute  in  such 
case  made  and  provided,  the  said  C.  D.  is  deemed  to  have  com- 
mitted the  crime  of  simple  larceny.  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  C.  D.  then  and 
there,  in  manner  and  form  aforesaid,  the  said  money  of  the  prop- 
erly and  moneys  of  the  said  J.  N.,  the  said  C.  D.'s  said  employer, 
from  the  said  J.  N.  feloniously  did  steal,  take,  and  carry  away  ; 
against,  &c.,  and  contrary,  &c.  [Conclude  as  in  book  1,  chap- 
ter 3.) 

(468)  Against  a  carrier  for  embezzlement.     Rev.  Sts.  of  Mass.  ch. 

126,  §  SO.id) 

That  one  J.  N.,  on  the  first  day  of  June,  in  the  year  of  our 
Lord  at  F.,  in  the  County  of  M.,  did  deliver  to  one  J.  S., 

the  usual  mode,  or  receives  them  oa  an  agreement  to  pay  a  certain  sum  therefor, 
within  a  specified  time  after  the  sale.  See  The  People  v.  Allen,  5  Denio,  76. 
By  "  the  money  or  property  of  another,"  in  the  statute,  is  meant  the  money  or 
property  of  any  person  except  such  agent,  clerk,  or  servant  who  embezzles  it. 
A  different  construction  v?ould  leave  unprovided  for  all  cases  of  embezzlement, 
by  servants  or  agents,  of  the  property  of  their  masters  or  their  principals. 
Commonwealth  v.  Stearns,  2  Mete.  343.  See  also  The  People  v  Hennessey,  11 
Wendell,  147. 

(d)  Tr.  &  Heard  Prec.  191.  Carriers  for  hire,  say  Messrs.  Train  &  Heard, 
could  not,  by  common  law,  commit  larceny.  Commonwealth  v.  Brown,  4  Mass. 
(Rand's  ed.),  old.  But  this  rule  has  been  changed  in  Massachusetts  and  in 
Maine.  Ilev.  Sts.  of  Mass.  ch.  126,  §  30;  Rev.  Sts.  of  Maine,  ch.  156,  §  7. 
Under  the  statute  of  Maine,  if  a  person,  to  whom  property  is  intrusted  in  Maine 
to  be  carried  lor  hire,  and  delivered  in  another  State,  shall,  before  such  delivery, 
fraudulently  convert  the  same  to  his  own  use,  the  crime  is  punishable  in  Maine, 
whether  the  act  of  conversion  be  in  that  State  or  another.  The  State  v.  Haskell, 
33  Maine,  127. 

419 


(469)  OFFENCES  AGAINST  PROPERTY. 

late  of,  &c.,  the  said  J.  S.  being  then  and  there  a  carrier,  a  certain 
large  sum  of  money,  to  wit,  the  sum  of  one  thousand  dollars, 
and  of  the  value  of  one  thousand  dollars,  of  the  property  and 
moneys  of  the  said  J.  N.,  to  be  carried  by  the  said  J.  S.,  for  hire, 
to  wit,  for  the  sum  of  two  dollars,  and  to  be  delivered  by  the  said 
J.  S.,  for  the  said  J.  N.,  and  by  the  said  J.  N.  sent  and  directed 
to  one  C.  D.,  at  B.,  in  the  County  of  S. ;  and  that  the  said  J.  S. 
did,  by  virtue  of  his  said  employment  as  a  carrier,  at  F.  aforesaid, 
in  the  county  aforesaid,  and  while  he  was  so  employed  as  afore- 
said, take  into  his  possession  said  money  to  be  carried  and  de- 
livered as  aforesaid,  and  that  the  said  J.  S.,  carrier  as  aforesaid, 
afterwards,  to  wit,  on  the  first  day  of  June,  in  the  year  of  our 
Lord  at  F.,  in  the  County  of  M.,  and  before  the  money  so 

delivered  to  him  as  aforesaid  was  by  the  said  J.  S.  delivered  to 
the  said  C.  D.  at  B.,  in  the  County  of  S.,  feloniously  did  embez- 
zle and  fraudulently  convert  the  same  to  his  own  use  ;  whereby, 
and  by  force  of  the  statute  in  such  case  made  and  provided,  the 
said  J.  S.  is  deemed  to  have  committed  the  crime  of  simple 
larceny.  And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  say,  that  the  said  J.  S.,  on  the  said  first  day  of  June,  in  the 
year  of  our  Lord  at  F.,  in  the  County  of  M.,  in  manner 

and  form  aforesaid,  the  said  money,  the  property  of  the  said  J. 
N.,  from  the  said  J.  N.  feloniously  did  steal,  take,  and  carry 
away ;  against,  &c.,  and  contrary,  &c.  ( Conclude  as  in  book  1, 
chapter  3.) 

(469)  Embezzlement  by  clerk  or  servant^  in  England. (^d^ 

That  J.  S.,  &c.,  on,  &c.,  at,  &c.,  being  then  and  there  employed 
as  clerk  ("clerk  or  servant,  or  any  person  employed  for  that  pur- 

(d)  Archbold's  C.  P.  5th  Am.  ed.  329. 

This  form  is  drawn  upon  the  statutes  7  &  8  Geo.  IV.  c.  29,  s.  47,  ■which, 
for  the  punishment  of  embezzlements  committed  by  clerks  or  servants,  declares 
and  enacts,  that  if  any  clerk  or  servant,  or  any  person  employed  for  the  purpose, 
or  in  the  capacity  of  a  clerk  or  servant,  shall,  by  virtue  of  such  employment 
receive,  or  take  into  his  possession  any  chattel,  money,  or  valuable  security,  for 
or  in  the  name  or  on  the  account  of  his  master,  and  shall  fraudulently  embezzle 
the  same  or  any  part  thereof,  every  such  offender  shall  be  deemed  to  have  felo- 
niously stolen  the  same  from  his  master,  although  such  chattel,  money,  or 
security  was  not  received  into  the  possession  of  such  master  otherwise  than  by 
the  actual  possession  of  his  clerk,  servant,  or  other  person  so  employed ;  and 

420 


EMBEZZLEMENT.  (469) 

pose,  or  in  the  capacity  of  a  clerk  or  servant"),  to  J.  N.,  did,  by 
virtue  of  his  said  employment,  then  and  there,  and  whilst  he  was 
so  employed  as  aforesaid,  receive  and  take  into  his  possession 
certain  money  ("chattel,  money,  or  valuable  security  "),(e)  to  a 
large  amount,  to  wit,  to  the  amount  of  ten  pounds,  for  and  in 
the  name  and  on  the  account  of  the  said  J.  N.,  his  master,  and 
the  said  money  then  and  there  fraudulently  and  feloniously  did 
embezzle;  and  so  the  jurors,  &c.,  do  say,  that  the  said  J.  S.,  on, 
&c.,  at,  &c.,  then  and  there,  in  manner  and  form  aforesaid,  the 
said  money,  the  property  of  the  said  J.  N.,  his  said  master,  from 
the  said  J.  N.  feloniously  did  steal,  take,  and  carry  away,  against, 
&c.,  and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

{If  the  prisoner  has  been  guilty  of  other  acts  of  embezzlement 
within  the  period  of  six  months,  add  the  following) : 

That  the  said  J.  S.,  on,  &c.,  at,  &c.,  afterwards,  and  within  six 
calendar  months  from  the  time  of  the  committing  of  the  said 
offence  in  the  first  count  of  this  indictment  charged  and  stated, 
to  wit,  on  the  day  of  in  the  year  aforesaid,  at  the 

parish  aforesaid,  in  the  county  aforesaid,  being  then  and  there 
employed  as  clerk  to  the  said  J.  N.,  did,  by  virtue  of  such  last 
mentioned  employment,  then  and  there,  and  whilst  he  was  so 
employed  as  last  aforesaid,  receive  and  take  into  his  possession 
certain  other  money  to  a  large  amount,  to  wit,  to  the  amount  of 
ten  pounds,  for  and  in  the  name  and  on  the  account  of  the  said 
J.  N.,  his  said  master,  and  the  said  last  mentioned  money  then 
and  there,  within  the  said  six  calendar  months,  fraudulently  and 
feloniously  did  embezzle,  and  so,  &c.  {as  in  the  first  count  to  the 
end). 

every  such  offender,  being  convicted  thereof,  shall  be  liable,  at  the  discretion  of 
the  court,  to  any  of  the  punishments  which  the  court  may  award  as  hereinbefore 
last  mentioned 

(e)  See  7  &  8  Geo.  IV.  c.  29,  s.  5. 

421 


OFFENCES  AGAINST  PROPERTY. 


CHAPTER  VIII. 

MALICIOUS  MISCHIEF. (/) 

[For  several  forms  of  indictments  "which  might  be  classed  under  this 
head,  see  "  Breaches  of  the  Peace,"  "  Assaults,"  &c.] 

(470)  Maliciously  wounding  a  cow. 

(471)  Giving  cantharides  to  prosecutors. 

(472)  Tearing  up  a  promissory  note. 

(/)  For  the  offence  generally,  see  Wh.  C.  L.  as  follows  :  — 
A.  Statutp:s. 

United  States. 

Intent  to  kill,  rob,  steal,  commit  a  rape,  &c.,  breaking  into  vessel 

upon  high  seas,  &c.,  §  1943. 
Massachusetts. 

Mingling  poison  with  food,  &c.,  §  1944. 

Maliciously  killing  or  maiming  horse,  cattle,  &c.,  §  1945. 

Breaking  down,  injuring,  removing,  or  destroying  dam,  reservoir, 

&c.,  §  1946. 
Destroying,  &c.,  public  or  toll-bridge,  railroad,  &c.,  §  1947. 
Maliciously  girdling,  lopping,  or  destroying  trees,  breaking  glass, 

&c.,  §  1948. 
Maliciously  destroying  monument  erected  for  designating  bound- 
aries of  town,  &c.,  §  1949. 
Maliciously  committing  trespass,  §  1950. 
Trespassing  on  grounds  of  another  with  intent  to  destroy  or  take 

away  trees,  &c.,  §  1951. 
Jurisdiction  of  justice  of  peace,  &c.,  §  1952. 
Beating  or  torturing  horse,  ox,  or  other  animal,  §  1953. 
Maliciously  destroying  personal  property  of  another,  §  1954. 
Jurisdiction  of  justice  of  peace,  &c.,  §  1955. 
Maliciously  destroying  building  by  gunpowder  or  other  explosive 

substance,  §  1956. 
Maliciously  throwing  into  or  against  building,  dwelling-house,  ship, 

&c.,  any  explosive  instrument,  §  1957. 
Throwing  oil  of  vitriol,  coal-tar,  &c.,  against  dwelling-house,  office> 

shop,  or  vessel,  §  1958. 
New  York. 

Removing  dead  body,  &c.,  §  1959. 
Purchasing  dead  body,  &c.,  §  1960, 

422 


MALICIOUS   MISCHIEF. 

(473)  Cutting  down  trees  the  property  of  another,  not  being  fruit,  or 

cultivated,  or  ornamental  trees,  under  Ohio  statute. 

(474)  Destroying  vegetables,  under  Ohio  statute. 

(475)  Killing  a  heifer,  under  Ohio  statute. 
(4  76)   Cutting  down  trees,  &c. 

(^Analysis  of  Malicious  Mischief  in  Wh.  C.  L.) 
Opening  grave,  either  to  remove  dead  body  or  to  steal  coffia  or 

vestments,  §  1961, 
Administering  poison  to  horse,  cattle,  sheep,  &c.,  §  1962. 
Committing  trespass,  &c.,  §  1963. 

Physician  prescribing  poison  in  state  of  intoxication,  §  1964. 
Selling  poisonous  substance  with  label,  without  word  "  poisOQ " 

thereon,  §  1965. 
Overloading  vessel  so  that  life  is  endangered,  §  1966. 
Ignorantly  or  by  gross  neglect,  raising  steam  in  order  to  excel 

any  boat,  &c.,  §  1967. 
Maliciously  killing,  maiming,  &c.,  horse,  ox,  or   other   cattle,  § 

1968. 
Reading  sealed  letter  addressed  to  another,  §  1969. 
Maliciously  publishing  any  part  of  such  letter,  §  1970. 
Extent  of  two  last  sections,  §  1971. 
Maliciously  destroying  public  or  toll-bridge,  §  1972. 
Destroying  mill-dam,  &c.,  §  1973. 
Removing  monument  erected  to  designate  the  extent  of  any  lot, 

&c.,  §  1974. 
Removing  or  destroying  mile-stone,  obliterating  or  defacing  marks 

on  monument,  §  1975. 
Mingling  poison  with  food,  or  poisoning  spring  or  reservoir,  §  1976. 
Destroying  monument  or  work  of  art,  or  ornamental  trees,  &c., 

§  1977. 
Person  liable  after  conviction  to  an  action  in  favor  of  party  injured, 

§1978. 
Pennsylvania. 

Removing  knocker  from  door,  or  cutting  or  destroying  spout,  § 

1979. 
Destroying  or  defacing  sign  denoting  place  of  business,  &c.,  §  1980. 
Destroying  rope  stretched  across  river  for  transporting  passengers, 

§  1981. 
Removing  landmark,  §  1982. 
Cutting  down  timber  in  land  of  another,  §  1983; 
Sureties  for  appearance,  &c.,  §  1984. 
Destroying  railroad,   edifice,  property,  or  work,  machinery,  &c., 

owned  by  such  company,  §  1985. 
Destroying  works  belonging  to  such  company,  &c.,  §  1986. 
Qui  tam  action,  §  1988. 
Maltreating  animals,  §  1989. 

423 


(470)  OFFENCES  AGAINST  PROPERTY. 

(477)  Killing  a  steer,  at  common  law. 

(478)  Altering  the  mark  of  a  sheep,  under  the  North  Carolina  statute. 

(479)  Second  count.     Defacing  mark. 

(480)  Entering  the  premises  of  another,  and  pulling  down  a  fence. 

(481)  Destroying  two  lobster  cars,  under  the  Massachusetts  statute. 

(482)  Removing  a  landmark,  under  the  Pennsylvania  statute. 

(483)  Felling  timber  in  the  channel  of  a  particular  creek,  in  a  particular 

county,  under  the  North  Carolina  statute. 

(484)  Throwing  down  fence,  under  Ohio  statute. 

(485)  Breaking  into  house,  and  frightening  a  pregnant  woman. 

(486)  Cutting  ropes  across  the  ferry. 

(487)  Breaking  glass  in  a  building.     Mass.  Rev.  Sts.  ch.  126,  §  42. 

(488)  Burning  a  record. 

\^For  several  forms  of  indictments  lohich  might  he  classed  under 
this  head,  see  "  Breaches  of  the  Peace"  "  Assaults,''^  Sfc.^ 

(470)  Maliciously  wounding  a  cow.((i) 
That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  one  cow,(^)  of  the  price  of 

(^Analysis  of  Malicious  Mischief  in  Wh.  C.  L.)  \ 

Virginia. 

Wilfully  destroying  ship  or  vessel,  §  1990. 
Administering  or  exposing  poison  for  beast,  §  1991. 
Maliciously  removing  or  injuring  canal,  railroad  bridge,  &c.,  §  1992. 
Unlawfully,  but  not  feloniously  defacing  or  injuring  property,  real 

or  personal,  §  1093. 
Torturing  beast,  §  1994. 
Ohio. 

Burning  or  setting  fire  to  certain  personal  property,  &c.,  §  1995. 
Maliciously  setting  fire  to  woods,  &c.,  §  1996. 
Maliciously  destroying  animal,  property  of  another,  §  1997. 
Maliciously  destroying  fruit  or  other  trees  in  nursery,  garden,  &c., 

§  1998. 
Felling,  boxing,  or  injuring  trees  of  another,  §  1999, 
Malicious  destruction  of  ornamental  trees  in  a  street  or  upon  pub- 
lic ground,  §  2000. 
Demolishing  mile-stone,  &c.,  or  guide-board,  §  2001. 
B.  Malicious  Mischief  at  Common  Law,  §  2002. 

(a)  Stark.  C.  P.  463.  As  to  the  validity  of  this  indictment  at  common  law, 
eee  Com.  v.  Leach,  1  Mass.  59 ;  People  v.  Smith,  5  Cow.  258 ;  Res.  v.  Teischer, 
1  Dall.  335  ;  State  v.  Council,  1  Overt.  (Tenn.),  305  ;  Loomis  v.  Edgerton,  19 
Wend.  419  ;  State  v.  "Wheeler,  3  Vt.  344. 

(l>)  This  is  a  sufficient  description.  State  v.  Pearce,  Peck,  66.  The  same 
precision  should  be  used  as  in  larceny.     See  Wh.  C.  L.  §§  355-363,  2005. 

424 


MALICIOUS   MISCHIEF.  (472) 

seven  pounds,  of  the  goods'  and  chattels  of  C.  D.,(c)  then  and 
there  being,  unlawfully,  wilfully,  and  maliciously  did  wound, (c?) 
to  the  great  damage  of  the  said  C.  D.,  against,  &c.  ( Conclude 
as  in  book  1,  chapter  3.) 

(471)    Giving  cantharides  to  prosecutors. (^e') 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  unlawfully  did  assault  M.  A. 
W.  and  M.  C,  and  then  and  there  unlawfully,  knowingly,  wick- 
edly, and  maliciously  did  administer  to,  and  cause  to  be  admin- 
istered to  and  taken,  by  the  said  M.  A.  W.  and  M.  C.  a  large 
quantity,  that  is  to  say,  two  scruples,  of  cantharides,  the  same  then 
and  there  being  a  deleterious  and  destructive  drug,  with  intent 
thereby  to  injure  the  health  of  the  said  M.  A.  W.  and  M.  C,  and 
the  said  M.  A.  W.  and  M.  C.  thereby  then  and  there  became  sick, 
sore,  diseased,  and  disordered  in  their  bodies,  insomuch  that  their 
lives  were  despaired  of,  to  the  great  damage,  &c. 

(472)   Tearing  up  a  promissory  note. 

That,  &c.,  on,  &c.,  at,  &c.,  a  certain  promissory  note  for  the 
payment  of  money,  commonly  called  a  due-bill,  made  and  drawn 
by  the  said  W.,  in  favor  of  one  A.  R.  C,  and  dated  for 

the  sum  and  of  the  value  of  five  dollars,  of  the  property  of  the 
said  A.,  the  said  note  and  due-bill  being  then  and  there  due  and 
unpaid  by  him  the  said  W.,  did  wilfully,  maliciously,  and  fraud- 
ulently tear  and  destroy,  with  the  intent  then  and  there  and 
thereby  to  cheat  and  defraud  the  said  A.,  to  the  great  damage  of 
the  said  A.,  to  the  evil  example  of  all  others  in  like  case  offend- 
ing, and  against,  &c.     {Conclude  as  in  hook  1,  chapter  3.) 

(c)  Any  mistake  in  the  name  of  the  owner  will  be  fatal.  Haworth  v.  State, 
Peck,  89.  Observe  the  same  particularity  as  in  larceny.  See  Wh.  C.  L.  §§ 
250-259,  2006. 

(fZ)  It  is  not  necessary  at  common  law,  separately  to  charge  malice  against 
the  owner.     State  v.  Scott,  2  Dev.  &  Bat.  35. 

(e)  See  R.  v.  Button,  8  C.  P.  660,  where  this  indictment  was  sustained.  But 
in  England,  it  now  seems,  the  offence  .here  stated  is  no  longer  considered  a  mis- 
demeanor at  common  law.  R.  v.  Dilworth,  2  Moo.  &  Rob.  531  ;  R.  u.  Hanson, 
2  C.  &K.  912. 

This  count,  which  in  this  country  would  be  classed  under  the  head  of  mali- 
cious mischief,  appears  to  have  been  treated  as  an  indictment  for  an  assault  at 
common  law,  and  to  have  been  sustained  as  such.  Whatever  may  be  its  nature, 
it  is  important  as  a  precedent. 

425 


(475)  OFFENCES  AGAINST  PROPERTY. 

(473)    Cutting  down  trees  the  property  of  another^  not  being  fruity 
or  cultivated,  or  ornamental  trees,  under  Ohio  statute. 

That  A.  B.,  C.  D.,  and  E.  F.,  on  the  tenth  day  of  November, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty- 
six,  at  the  township  of  Independence,  in  the  County  of  Cuyahoga 
aforesaid,  thirty  living  trees,  standing  on  land  then  and  there 
owned  by  M.  N.  and  O.  P.,  did  maliciously,  wrongfully,  and 
without  any  lawful  authority,  cut  down  and  destroy;  the  said 
trees  not  being  then  and  there  fruit  or  ornamental  trees,  and  not 
trees  standing  or  growing  in  any  nursery,  garden,  orchard,  or 
yard,  (a) 

(474)  Destroying  vegetables,  under  Ohio  statute. 

That  A.  B.,  on  the  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  at  Wayne  township,  in 

the  County  of  Muskingum  aforesaid,  wilfully,  maliciously,  and 
without  lawful  authority,  did  cut  down,  sever,  and  injure  two 
thousand  stalks  of  a  certain  cultivated  root  and  plant  called  In- 
dian corn,  of  the  value  of  fifty  dollars,  said  plants,  stalks,  and 
corn  then  and  there  standing  and  growing  on  the  lands  of 
another,  to  wit,  the  lands  of  one  M.  N.,  there  situate. (5) 

(475)  Killing  a  heifer,  under  Ohio  statute. (^c) 

That  A.  B.  and  C.  D.,  on  the  eighteenth  day  of  October,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty-two,  in 
the  County  of  Cuyahoga  aforesaid,  wilfully,  maliciously,  and 
purposely  did  kill  and  destroy  a  certain  heifer,  then  and  there 
being  found,  and  the  property  of  M.  N.,  of  the  value  of  twelve 
dollars,  by  then  and  there  {here  set  out  the  manner  of  killing), 
which  said  heifer  was  not  then  and  there  trespassing  in  any  in- 
closure  of  the  said  A.  B.(cZ) 

(a)  See  Warren's  C.  L.  156. 
(h)  Warren's  C.  L.  156. 

(f)  It  should  be  observed  that  in  Ohio  the  statute  should  be  followed  closely, 
as  the  offence  does  not  exist  at  common  law. 
(d)  Warren's  C  L.  147. 

426 


MALICIOUS  MISCHIEF.  (477) 

(476)  Cutting  down  trees,  ^c.(^f^ 
That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  wilfully  and  maliciously  did 
cut  down  and  destroy  ten  ash-trees,  planted  in  a  certain  avenue  to 
the  dwelling-house  of  one  M.  N.,  and  then  growing  for  ornament 
there  (he  the  said  M.  N.  then  and  there  being  then  owner  of  the 
said  trees),  to  the  great  damage  of  the  said  M.  N.,  against,  &c. 
{Conclude  as  in  book  1,  chapter  3.) 

(477)  Killing  a  steer,  at  common  law.(^g^ 

That  D.  S.,  &c.,  on,  &c.,  at,  &c.,  one  steer,  of  the  value  of  five 
dollars,  of  the  goods  and  chattels  of  one  L.  M'C,  then  and  there 

(/)  See  Stark.  C.  P.  463.  I  appreliend  this  form  would  be  good  at  common 
law  (Cora.  V.  Eckert,  2  Browne,  251  ;  Loomis  v.  Edgarton,  19  Wend.  420;  though 
see  Brown's  case,  3  Greenl.  177).     See  Wh.  C.  L.  §  2002. 

(jg)  State  v.  Scott,  2  Dev.  &  Bat.  35. 

Daniel,  J.,  after  stating  the  substance  of  the  case  in  detail,  proceeded:  "We 
see  no  ground  for  a  new  trial  in  this  case.  The  evidence  objected  to  was  ad- 
mitted—  and,  as  we  think,  correctly  —  to  repel  an  allegation  made  by  the 
defendant,  of  an  alihi.  And  after  the  evidence  was  admitted  by  the  court,  the 
weight  and  eifect  of  it  was  matter  for  the  jury  only ;  and  it  seems  to  us,  that 
there  was  nothing  left  for  the  court  to  remark  upon,  especially,  as  no  particular 
charge  concerning  this  evidence  was  prayed  by  the  defendant.  We  have  ex- 
amined the  reasons  in  arrest,  and  concur  in  opinion  with  the  judge  who  pro- 
nounced the  judgment.  1st.  The  two  detached  pieces  of  paper  writing  purport- 
ing to  be  a  transcript  of  the  record,  contained  everything  necessary  to  give 
Buncombe  Superior  Court  jurisdiction ;  it  contained  the  indictment,  plea,  and 
order  of  removal.  In  that  shape  it  was  entered  on  the  State  docket,  and  the 
defendant  went  to  trial.  From  great  caution,  the  judge  suspended  judgment  at 
the  trial  term,  and  sent  a  certiorari  for  such  a  record  as  could  not  be  cavilled 
about.  At  the  term  judgment  was  rendered,  the  record  was  unexceptionable, 
and  showed  that  the  two  pieces  of  paper  which  had  been  received  as  the  record 
of  the  case,  and  on  which  the  defendant  had  been  tried,  contained  a  true  and 
complete  transcript  of  the  record  when  it  was  removed  from  Rutherford.  So, 
when  judgment  was  pronounced,  the  record  showed  that  the  case  had  been  prop- 
erly removed,  and  that  Buncombe  Superior  Court  had  jurisdiction  of  the  case 
at  the  term  the  trial  took  place.  The  record  being  unexceptionable  when 
judgment  was  prayed,  there  was  nothing  to  restrain  the  judge  from  pronounc- 
ing it. 

"  2d.  This  court  decided,  in  the  case  of  the  State  v.  Simpson,  2  Hawks,  460, 
that  an  indictment  for  malicious  mischief,  which  concluded  at  common  law,  was 
good. 

"  That  decision  was  made  in  the  year  1823,  and  since  that  time  many  convic- 
tions on  indictments  for  malicious  mischief  at  common  law,  have  taken  place  in 

427 


(478)  OFFENCES  AGAINST  PEOPERTT. 

being,  then  and  there  unlawfully,  wantonly,  maliciously,  and 
mischievously  did  kill,  to  the  great  damage  of  the  said  L.  M'C, 
and  against,  &c.     ( Conclude  as  in  hook  1,  chapter  3.) 

(478)  Altering  the  marh  of  a  sheep,  under  the  North  Carolina  stat- 
ute. (A) 

That  J.  D.,  &c,,  on,  &c.,  at,  &c.,  feloniously  and  knowingly  did 
the  circuits  of  this  State.  In  the  year  1826,  the  legislature  indirectly  approved 
of  the  decision;  for  in  the  act  limiting  the  time  that  indictments  for  misdemean- 
ors should  be  brought,  it  is  declared,  that  in  all  trespasses  and  other  misde- 
meanors, except  the  offences  of  perjury,  forgery,  malicious  mischief,  and  deceit, 
the  prosecution  shall  commence  within  three  years  after  the  commission  of  the 
offence.  After  what  has  taken  place,  we  think  the  period  too  late  for  us  now  to 
examine  further  into  the  question. 

"  3d.  The  objection  is,  that  the  indictment  does  not  charge  malice  against  the 
owner  of  the  property.  We  have  looked  into  the  books  of  forms  and  precedents, 
and  find  that  the  form  of  this  indictment  corresponds  with  the  forms  prescribed 
in  the  books.  What  evidence  the  State  must  produce  to  support  such  an  indict- 
ment as  this,  we  are  not  called  on  to  decide.  We  think  there  is  no  ground  for 
a  new  trial  or  arrest  of  judgment ;  and  this  opinion  will  be  certified  to  the  Supe- 
rior Court  of  Law  for  the  County  of  Buncombe,  that  it  may  proceed  to  final  judg- 
ment in  the  case." 

(h)  State  V.  Davis,  2  Iredell,  153. 

Gaston  J. :  "  We  are  of  opinion  that  the  appellant  has  not  shown  any  error  in 
the  instructions  to  the  jury,  nor  sufficient  reasons  to  arrest  the  judgment. 

"  The  indictment  is  founded  on  the  act  of  1822,  c.  1155,  reenacted  in  the  Re- 
vised Sts.  ch.  34,  §  55,  whereby  it  is  declared,  '  that  if  any  person  shall  know- 
'  ingly  alter  or  defice  the  mark  or  brand  of  any  person's  neat  cattle,  sheep,  or  hog, 
shall  knowingly  mismark  or  brand  any  unbranded  or  unmarked  neat  cattle, 
sheep,  or  hog,  not  properly  his  own,  with  intent  to  defraud  any  other  person,  he 
shall,  on  conviction  in  a  court  of  record,  be  liable  to  corporal  punishment  in  the 
same  manner  as  on  a  conviction  of  petit  larceny.'  The  manifest  purpose  of  the 
legislature  is  to  punish  the  act  of  changing  or  defacing  these  marks  or  brands, 
which  are  the  ordinary  indications  of  ownership  in  property  of  this  description, 
and  also  the  act  of  putting  false  marks  or  brands  thereon,  with  intent  to  injure 
the  owner  by  either  depriving  him  of  the  property  or  rendering  his  title  thereto 
more  difficult  of  proof  Now,  when  the  act  of  wilfully  changing  or  defacing  the 
mark  is  fixed  upon  the  person  accused,  and  no  explanation  is  given  of  the  act  to 
render  it  consistent  with  an  honest  purpose,  the  conclusion  follows  kresistibly 
that  it  was  done  with  intent  to  effect  the  injury  which  is  the  ordinary  and  neces- 
sary consequence  of  the  act.  Such  intention  is  directed  against  the  owner,  who- 
ever he  may  be,  and  the  charge  that  the  act  was  done  with  intent  to  injure  any 
individual  named,  is  made  out,  when  it  is  shown  that  he  was  the  owner  at  the 
time  when  the  act  was  committed. 

"  It  has  been  contended  by  the  counsel  for  the  appellant,  that  the  offence  cre- 
428 


MALICIOUS   MISCHIEF.  (478) 

alter  the  mark  of  one  sheep,  the  property  of  W.  M'C,  know- 
ingly, with  intent  to  defraud  the  said  W.  M'C,  contrary,  &c.,  and 
against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

ated  by  the  statute  and  charged  in  the  indictment  could  not  have  been  com- 
mitted, because  at  the  time  when  the  act  was  done,  the  animal  had  strayed  from 
the  possession  of  the  owner,  and  the  statute,  by  declaring  that  the  offender  shall 
be  liable  to  corporal  punishment  in  the  same  manner  as  on  a  conviction  of  petit 
larceny,  must  be  understood  as  applying  to  those  cases  only  wherein  the  offender, 
by  a  feloiiious  appropriation  of  the  animal,  would  have  committed  the  crime  of 
petit  larceny.  ■  He  further  urges  that  this  construction  of  the  statute  is  strength- 
ened by  the  circumstance,  that  a  special  provision  is  made  by  the  statute  for 
improper  interference  with  strays,  in  ch.  112,  §  8.  We  do  not  concur  in  this  con- 
struction of  the  statute.  In  the  description  of  the  offence  thereby  created,  no 
reference  is  made  to  the  crime  of  larceny.  The  offence  consists  in  knowingly 
altering  and  defacing  the  mark  of,  or  in  knowingly  mismarking  an  animal,  the 
property  of  another,  with  intent  to  defraud.  The  mere  straying  of  the  animal 
from  the  owner's  premises  makes  no  change  of  property.  The  animal  still  re- 
mains his,  and  the  wrongful  act  is  not  less  calculated,  but  in  fixct  more  likely  to 
do  him  an  injury,  than  it  would  be  if  done  to  an  animal  in  his  immediate  pos- 
session. The  reference  in  the  statute  to  the  punishment  in  cases  of  petit  larceny 
does  not  affect  the  description  of  the  offence,  more  than  it  would  have  afiected 
that  description,  if  the  reference  had  been  to  the  punishment  in  cases  of  perjury 
or  forgery,  or  of  any  other  crime.  It  only  denounces  against  the  offence  previ- 
ously described,  the  same  penalty  by  which  the  existing  law  is  inflicted  upon  a 
conviction  of  petit  larceny.  The  construction  contended  for  is  not  unwarranted 
by  the  language  of  the  statute,  but  would  render  the  statute  itself  inoperative  in 
the  case,  which  mainly  rendered  it  necessary.  Nor  does  the  section  referred  to 
in  ch.  112  provide  for  an  offence  of  this  description  in  cases  of  strays.  The  ob- 
ject of  the  legislature  in  that  chapter  is  to  point  out  a  mode  of  proceeding  in 
those  cases,  whereby  the  owner  may  be  enabled  to  regain  the  possession  of  his 
property  or  to  get  the  value  thereof,  and  a  proper  compensation  may  be  made 
to  those,  who  shall  render  him  the  assistance  for  this  purpose ;  and,  in  further- 
ance of  this  object,  the  eighth  section  imposes  a  pecuniary  mulct  on  those  who 
may  take  up  or  use  the  stray,  otherwise  than  in  the  mode  therein  directed. 

"  The  motion  in  arrest  of  judgment  rests  on  two  grounds.  The  first  is,  for 
that  the  offence  is  not  described  in  the  language  of  the  statute.  This  objection 
applies  only  to  the  first  count  of  the  indictment,  and  as  to  that  is  well  taken. 
The  first  count  charges  that  the  accused  did  alter  the  make  of  the  sheep. 
No  doubt  the  word  '  make '  was  intended  to  be  written  '  mark,'  but  it  is  a  differ- 
ent word,  having  a  different  signification,  and  cannot  be  brought  within  the 
exception  of  idem  sonans.  But  this  mistake  is  not  in  the  second  count,  which 
charges  that  he  defaced  the  mark  of  the  sheep  ;  and  a  general  verdict  of  guilty 
having  been  rendered,  judgment  will  not  be  arrested,  if  either  count  be  suffi- 
cient to  warrant  it." 

429 


(482)  OFFENCES  AGAINST  PROPERTY. 


(479)   Second  count.     Defacing  mark. 
That  J.  D., &c.,  on,  &c.,  at,  &c.,  knowingly  did  deface  the  nnark 
of  a  sheep,  the  projserty  of  one  W.  M'C,  then  and  there,  with 
an  intent  to  defraud  the  said  W.  M'C,  contrary,  &c.,  and  against, 
&LC.     { Conclude  as  in  book  1,  chapter  3.) 

(480)  Entering  the  premises  of  another^  and  pulling  down  afence.(^j^ 

That  T.  C,  &c.,  on,  &c.,  at,  &c.,  into  a  certain  close  of  a  cer- 
tain A.  M.,  situate  in  the  township  and  county  aforesaid,  in  and 
upon  the  possession  thereof  of  the  said  A.,  into  which  the  said 
T.  had  not  legal  right  of  entry,  did  enter,  and  ten  panel  of  fence 
of  the  said  A.,  then  and  there  standing  and  being,  then  and  there 
did  pull  down,  take,  and  carry  away,  to  the  great  damage  of  the 
said  A.,  and  against,  &c.     [Conclude  as  in  book  1,  chapter  3.)-^ 

(481)  Destroying  two  lobster  cars,  under  the  Massachusetts  stat- 

ute.(k) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  did  wilfully,  maliciously,  and 
secretly,  in  the  night-time,  destroy  and  injure  two  lob.ster  cars, 
two  brass  locks  attached  to  said  cars,  and  two  cables,  by  which 
said  cars  were  moored  and  fastened,  and  three  hundred  lobsters 
contained  in  the  cars  aforesaid,  all  being  the  property  of  one  F. 
W.,  &c. 

(482)  Removing  a  landmark,  under  the  Pennsylvania  statute.Ql) 

That  L.  S.,  &c.,  on,  &c.,  at,  &c.,  one  bounded  growing  oak- 
tree,  being  one  of  the  landmarks  of  a  tract  of  plantable  land, 
whereof  J.  B.  was  then  and  there  seized  in  his  demesne  as  of 
fee,  at  township  aforesaid,  and  within,  &c.,  secretly,  un- 

(J)  This  indictment  was  drawn  in  1779,  by  Mr.  John  D.  Sergeant,  then 
attorney -general  of  Pennsylvania.  See  "Forcible  Entry  and  Detainer,"  post, 
489,  &c. 

(k)  On  this  count,  framed  upon  the  Rev.  Sts.  ch.  126,  §  39,  alleging  that 
the  defendant  wilfully  destroyed  and  injured  a  cable  by  which  a  fish  car  was 
moored  and  fastened,  proof  that  he  wilfully,  &c.,  cut  otf  such  a  cable  a  few 
feet  from  one  end  thereof,  was  held  sufficient  to  warrant  his  conviction.  Oom. 
V.  Soule,  2  Met.  21. 

(/)  This  indictment  is  taken  from  Reed's  Digest,  and  is  di'awn  on  the  pro- 
vincial act  of  1700;  1  Smith's  Laws,  4. 

430 


^ 


MALICIOUS   MISCHIEF.  (^^85) 

justly,  and  without  the  consent  or  knowledge  of  the  said  J.  B., 
did  cut  down  and  remove,  contrary,  &c.,  and  against,  &c.  ( Con- 
clude as  in  book  1,  chapter  3.) 

(483)  Felling  timber  in  the  channel  of  a  particular  creeJc,  in  a  par- 
ticular county^  under  the  North  Carolina  statute.(m') 

That  H.  C,  &c.,  on,  &c.,  at,  &c.,  unlawfully  and  maliciously 
did  fell  timber  in  the  channel  of  Hogan's  Creek,  in  the  County 
of  Caswell  aforesaid,  and  did  then  and  there,  by  such  felling  of 
timber  aforesaid,  on  the  twentieth  day  of  February  aforesaid, 
obstruct  the  chaimel  of  the  creek  aforesaid,  in  the  County  of 
Caswell  aforesaid,  to  the  great  damage  of  the  owners  of  the  land 
on  said  creek,  contrary,  &c.,  and  against,  &c.  ( Conclude  as  in 
hook  1,  chapter  3.) 

(484)   Throwing  down  fence^  under  Ohio  statute. 

That  A.  B.,  on  the  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  in  the  County  of  Mus- 

kingum aforesaid,  did  wantonly  and  maliciously  throw,  put,  and 
lay  down  and  prostrate  twenty  panels  of  a  certain  fence  there 
situate,  said  fence  then  and  there  inclosing  a  certain  field  there 
situate,  in  which  said  field  a  certain  grain,  called  wheat,  was  then 
and  there  cultivated,  said  fence,  field,  and  grain  being  then  and 
there  the  property  of  another  person  than  the  said  A.  B.,  to  wit, 
the  property  of  one  M.  N.,  and  being  then  and  there  lawfully 
occupied  by  the  said  M.  N.,  and  he  the  said  A.  B.  did  then  and 
there  wantonly  and  maliciously  leave  said  twenty  panels  of  said 
fence  down,  prostrate,  and  open.(m^) 

(485)  Breaking  into  house,  and  frightening'  a  pregnant  woman. (n) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  about  the  hour  of  ten  of  the 
clock  in  the  night  of  the  same  day,  with  force  and  arms,  at  Lur- 

(77?)   State  V.  Cobb,  1  Dev.  &  Bat.  115. 

(ml)  Warren's  C.  L.  172. 

(ii)  Com.  V.  Taylor,  5  Binn.  277.  "But  supposing,"  said  Tilghman,  C.  J., 
"  the  indictment  not  to  be  good  for  a  forcible  entry,  may  it  not  be  supported  on 
other  grounds  ?  In  the  case  of  The  Com.  v.  Teischer,  1  Dall.  335,  judgment 
was  given  against  the  defendant  for  '  maliciously,  wilfully,  and  wickedly  killing  a 
horse.'  These  are  the  words  of  the  indictment,  and  it  seems  to  have  been  con- 
ceded by  Mr.  Sergeant,  the  counsel  for  the  defendant,  that  if  it  had  been  laid 

431 


(485)  OFFENCES   AGAINST   PROPERTY. 

gan  township,  in  the  county  aforesaid,  the  dwelling-house  of  J. 
S.,  there  situate,  unlawfully,  maliciously,  and  secretly  did  break 
and  enter,  with  intent  to  disturb  the  peace  of  the  commonwealth; 
and  so  being  in  the  said  dwelling-house,  unlawfully,  vehemently, 
and  turbulently  did  make  a  great  noise,  in  disturbance  of  the 
peace  of  the  commonwealth,  and  greatly  misbehave  himself  in 
the  said  dwelling-house,  and  E.  S.,  the  wife  of  the  said  J.,  greatly 
did  frighten  and  alarm,  by  means  of  which  said  fright  and  alarm, 
she  the  said  E.,  being  then  and  there  pregnant,  did  on  the  seventh 
day  of  September,  in  the  year  aforesaid,  at  the  county  aforesaid, 
miscarry,  and  other  wrongs  to  the  said  E.  then  and  there  did,  to 
the  evil  example,  &c. 

to  be  done  secretly,  the  indictment  would  have  been  good.  Here  the  entering 
of  the  house  is  U^id  to  be  done  '  secretly,  maliciously,  and  with  an  attempt  to  dis- 
turb the  peace  of  the  commo?iiveallh.'  I  do  not  find  any  precise  line  by  which 
indictments  for  malicious  mischief  are  separated  from  actions  of  trespass.  But 
whether  the  malice,  the  mischief,  or  the  evil  example  is  considered,  the  case  be- 
fore us  seems  full  as  strong-  as  Teischer's  case.  There  is  another  principle,  how- 
ever, upon  which  it  appears  to  me  that  the  indictment  may  be  supported.  It  is 
not  necessary  that  there  should  be  actual  force  or  violence  to  constitute  an  in- 
dictable offence.  Acts  injurious  to  private  persons,  which  tend  to  excite  violent 
resentment,  and  thus  produce  fighting  and  disturbance  of  the  peace  of  society, 
are  themselves  indictable.  To  send  a  challenge  to  fight  a  duel  is  indictable, 
because  it  tends  directly  towards  a  breach  of  the  peace.  Libels  fall  within  the 
same  reason.  A  libel  even  of  a  deceased  person  is  an  offence  against  the  public, 
because  it  may  stir  up  the  passions  of  the  living  and  produce  acts  of  revenge. 
Now  what  could  be  more  likely  to  produce  violent  passion  and  a  disturbance  of 
the  peace  of  society,  than  the  conduct  of  the  defendant  ?  He  enters  secretly 
after  night  into  a  private  dwelling-house,  with  an  intent  to  disturb  the  family, 
and  after  entering  makes  such  a  noise  as  to  terrify  the  mistress  of  the  house  to 
such  a  degree  as  to  cause  a  miscarriage.  Was  not  this  enough  to  produce  some 
act  of  desperate  violence  on  the  part  of  the  master  or  servants  of  the  family  ? 
It  is  objected  that  the  kind  of  noise  is  not  described  ;  no  matter,  it  is  said  to 
have  been  made  vehemently  and  turhulently,  and  its  effects  on  the  pregnant 
woman  are  described.  In  the  case  of  the  King  v.  Hood  (Sayer's  Rep.  in  K.  B. . 
161),  the  court  refused  to  quash  an  indictment  for  disturbing  a  family  by  violently 
kicking  at  the  front  door  of  the  house  for  the  space  of  two  hours.  It  is  impossi- 
ble to  find  precedents  for  all  offences.  The  malicious  ingenuity  of  mankind  is 
constantly  producing  new  inventions  in  the  art  of  disturbing  their  neighbors. 
To  this  invention  must  be  opposed  general  principles,  calculated  to  meet  and 
punish  them.  I  am  of  opinion  that  the  conduct  of  the  defendant  falls  within 
the  range  of  established  principles,  and  that  the  judgment  of  the  court  below 
should  be  reversed."     See  similar  precedent,  post,  868. 

432 


i 


MALICIOUS   MISCHIEF.  (488) 

(486)  Cutting  ropes  across  the  ferry. {o) 
That  H.  K.,  &c.,  on,  &c.,  at,  &c.,  did  maliciously  and  wantonly 
cut  two  ropes  stretched  across  the  river  Schuylkill  by  C.  P.  el  ah, 
the  occupiers  of  the  ferry  over  Schuylkill,  commonly  called  the 
upper  ferry,  and  that  the  said  ropes  are  used  in  drawing  boats 
and  carrying  travellers  over  the  same  river  and  ferry,  to  the  great 
damage  of  the  said  C.  P.,  and  against,  &c.,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(487)  Breaking  glass  in  a  building.    Mass.  Rev.  Sts.  ch.  126,  §  42. 

That  C.  D.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  with  force  and 

arms,  at  B.  aforesaid,  in  the  county  aforesaid,  wilfully,  mali- 
ciously, wantonly,  and  without  cause,  did  break  and  destroy  the 
glass,  to  wit,  ten  panes  of  window-glass,  each  of  the  value  of 
one  dollar,  of  the  property  of  one  A.  B.,  in  a  certain  building 
there  situate,  not  his  the  said  C.  D.'s  own,  but  which  building 
then  and  there  belonged  to  and  was  the  property  of  the  said  A. 
B.,  the  said  glass  then  and  there  being  parcel  of  the  realty,  to 
wit,  of  the  building  aforesaid,(o^)  against,  &c.,  and  contrary,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(488)  Burning  a  record.(^p^ 

That  H.  E.,  &c.,  L.  K.,  &c.,  W.  H.,  &c.,  M.  H.,  &c.,  and  G.  S., 
&c.,  on,  &c.,  at,  &c.,  a  certain  paper  writing,  containing  in  itself 
a  certificate  of  four  sufficient  housekeepers  of  the  neighborhood, 
inhabiting  in  and  near  the  said  township,  and  with  their  names 
subscribed,  and  to  the  justices  of  the  peace  of  the  same  county 
directed,  that  they  the  said  housekeepers  had  laid  out  a  road  and 
highway  in  the  said  township,  according  to  an  order  of  the  same 

(o)  Drawn  and  prosecuted  in  1773,  by  llr.  Andrew  Allen,  then  attorney- 
general  of  Pennsylvania. 

(o  ')  See  as  to  necessity  of  this  allegation.  Com.  v.  Bean,  6  Bost.  Law  Rep. 
N.  S.  387. 

(p)  Drawn  by  Tench  Francis  (attorney-general  of  Pennsylvania),  some 
years  before  the  Revolution,  though  I  have  been  unable  to  fix  the  exact  date. 
The  existence  of  this,  and  of  several  kindred  precedents  under  the  head  of 
"  Malicious  Mischief,"  "  Nuisances,"  &c.,  shows  the  liberality  with  which  the 
common  law  was  applied  under  the  colonial  system. 

VOL.  I.  — 28  433 


(488)  OFFENCES  AGAINST  PROPERTY. 

justices  in  their  Quarter  Sessions  made  for  the  laying  out  the 
same,  which  to  the  same  justices  in  their  Quarter  Sessions  had 
been  and  legally  made,  certified,  and  returned,  and  of  record 
affiled,  according  to  the  act  of  Assembly  in  such  case  made  and 
provided,  to  wit,  at  the  City  of  Philadelphia,  in  the  said  county, 
unjustly  and  unlawfully  did  burn  and  destroy,  to  the  manifest 
contempt  of  the  good  laws  of  this  province,  to  the  evil  example 
of  all  others  in  the  like  case  offending,  against,  &c.  {Conclude 
as  in  book  1,  chapter  8.) 
434 


FORCIBLE   ENTRY    AND    DETAINER. 


CHAPTER  IX. 

FORCIBLE  ENTRY  AND  DETAINER,  (a) 

(489)  General  frame  of  indictment  at  common  law. 

(490)  Another  form  of  same. 

(491)  Against  one,  &c.,  at  common   law,  with  no  averment  of  either 

leasehold  or  freehold  possession  in  the  prosecutor. 

(a)  Before  considering  the  pleading  in  forcible  entry  and  detainer,  the  gen- 
eral character  of  the  offence  will  be  considered. 

(^Forcible  entry  at  common  latv.)  The  assertion  of  right  to  lands  or  houses 
by  force  has  always  been  discouraged  by  courts,  from  a  just  apprehension  of 
the  tumults  to  which  such  proceedings  may  lead.  Although,  therefore,  no  in- 
dictment will  lie  for  a  mere  trespass,  accompanied  only  by  constructive  force, 
yet  it  seems  to  be  established  that  an  entry  on  land,  or  into  a  house,  garden,  &c., 
or  a  church,  though  no  one  be  therein,  with  such  actual  violence  as  amounts  to 
an  unlawful  act,  or  public  breach  of  the  peace,  expressed  in  law  to  be  "  with 
force  and  arms  and  a  strong  hand,"  e.  g.  bringing  unusual  weapons,  threatening 
violence,  breaking  open  a  door,  or  violent  ejection  of  the  possessor  of  a  house, 
is  ah  offence  indictable  at  common  law,  as  a  forcible  entry  (Langdon  v.  Potter, 
3  Mass.  215  ;  Harding's  case,  1  Greenl.  22 ;  Com.  v.  Taylor,  5  Binn.  277  ;  Newton 
V.  Harland,  1  Man.  &  G.  644;  Cruiser  v.  State,  3  Harrison,  206  ;  State  v.  Mills, 
2  Dev.  420 ;  State  v.  Spierin,  1  Brevard,  119),  though  the  statute  gives  other  rem- 
edies to  the  parties  aggrieved,  viz.,  restitution  and  damages  ;  and  that  the  illegal 
and  violent  maintenance  of  possession,  if  the  entry  was  unlawful,  is,  in  like 
manner,  indictable  as  a  forcible  detainer.  Reg.  v.  Newlands,  4  Jur.  322,  Little- 
dale  J. ;  Le Blanc,  J.,  R.  v.  Wilson  and  others,  8  T.  R.  363  ;  Ld.  Kenyon,  lb.  357  ; 
Co.  Lit.  257;  R.  v.  John  Wilson,  3  A.  &  E.  817;  S.  C.  5  N.  &  M.  164  ;  Com.  Dig. 
tit.  Forcible  Entry  (A.  1,  2,  B.  1).  An  entry,  though  by  one  person  only,  will 
be  forcible,  if  either  by  act  or  threat  at  the  time  of  his  entry  he  gives  the  party 
in  possession  just  cause  to  fear  bodily  hurt  if  he  does  not  give  way ;  and  the 
same  circumstances  of  violence  or  terror  which  make  an  entry  forcible,  make  a 
detainer  forcible  also.  A  detainer  may  be  forcible  whether  the  entry  were  so 
or  not  (Hawk.  b.  1,  c.  64  ;  Com.  Dig.  tit.  Forcible  Entry),  if  such  entry  was  un- 
lawful. R.  V.  Oakley,  4  B.  &  Ad.  3'o7 ;  1  N.  &  M.  58.  Though  a  breach  of  the 
peace  is  necessary  to  constitute  the  offence  (Com.  v.  Dudley,  10  Mass.  403),  it 
seems  that  no  circumstances  of  great  public  violence  or  terror  are  requisite ; 
for  it  is  laid  down  "  that  an  entry  may  be  said  to  be  forcible,  not  only  in  respect 
of  violence  actually  done  to  the  person  of  a  man,  as,  by  beating  him  if  he  refuse 
to  relinquish  his  possession,  but  also  in  respect  of  any  violence  in  the  manner 

435 


OFFENCES  AGAINST  PROPERTY. 

(492)  Forcible  entry,  &c.,  into  a  freehold,  on  stat.  5  Rich.  11. 

(493)  Forcible  entry  into  a  leasehold,  on  stat.  21  Jac.  I. 

(494)  Forcible  detainer,  on  stat.  8  Hen.  VIII.  or  21  Jac.  I. 

of  entry,  as,  by  breaking  open  the  doors  of  a  house,  whether  any  person  be  in 
it  at  the  same  time  or  not,  especially  if  it  be  a  dwelling-house."  Hawk.  b.  1,  c. 
64,  s.  26  ;  State  v.  Pollock,  4  Iredell,  305 ;  Bennett  v.  State,  4  Rice,  340.  The 
offence  of  forcible  entry  at  common  law  is  punishable  by  fine  or  imprisonment, 
in  respect  to  the  injury  done  to  the  public  peace. 

(^Forcible  entry  within  the  statutes.)  But  further  to  discourage  the  attempts  of 
parties  to  assert  their  claims  by  violence,  statutes  were  passed  in  England  in 
very  early  times,  which  have  been  substantially  reenacted  in  several  of  the  States, 
not  merely  to  annex  punishment  to  the  offence  of  entering  by  strong  hand  on  a 
peaceable  possession,  but  to  grant  restitution  to  the  party  disposessed,  on  the 
conviction  of  the  offender.  After,  therefore,  the  statute  5  Richard  II.  had  de- 
clared the  law  "  that  none  should  make  entry  into  lands  and  tenements,  but 
in  cases  where  entry  is  given  by  the  law,  nor,  in  such  cases,  with  strong  hand 
nor  with  multitude  of  people  (ten  making  a  '  multitude ; '  Co.  Lit.  257  a  ;  R.  v. 
Heine,  cited  Stra.  195  ;  Ex  parte  Davy,  6  Jur.  949,  Wightman,  J.),  but  only  in  a 
peaceable  and  easy  manner,  on  pain  of  imprisonment  and  ransom,"  the  statute 
15  Rich.  II.  c.  2,  gave  a  remedy  by  summary  commitment  of  the  offender  till  fine 
and  ransom ;  and  by  8  Hen.  VIII.  c.  9,  this  provision  was  extended  to  cases  of 
forcible  detainer,  and  justices  of  the  peace  were  empowered  to  restore  the  prem- 
ises to  the  former  possessor,  where  the  force  had  been  found  by  a  jury  summoned 
by  them.  Reg.  v.  Harland  and  others,  1  P.  &  D.  33  ;  S.  C.  8  A.  &  E.  826  ;  2 
M.  &  Rob.  141 ;  R.  v.  Hake,  4  Man.  &  Ry.  483,  n.  The  inquisition  must  set 
forth  the  estate  possessed  by  the  party  in  the  property  disputed.  Reg.  v. 
Bowser,  8  D.  P.  C.  128.  On  these  statutes  it  was  doubted  whether  any  but  a 
freeholder  could  have  restitution ;  and,  therefore,  the  21  Jac.  I.  aj^plied  the 
power  conferred  by  the  former  acts  to  the  restitution  of  possession  of  which  ten- 
ants for  terms  of  years,  tenants  by  copy  of  court  roll,  guardians  by  knight  ser- 
vice, and  tenants  by  elegit,  statute  merchant,  or  statute  staple,  had  been  forcibly 
deprived ;  on  this  account  the  prosecutor's  interest  in  the  premises  must  be  stated 
in  the  indictment.  Ld.  Kenyon,  R.  v.  Wilson  and  others,  8  T.  R.  357.  Under 
these  acts,  therefore,  a  prosecutor  who  is  a  freeholder  or  leaseholder,  &c.,  may 
have  restitution  on  conviction  of  the  party  of  whose  dispossession  he  complains. 
This  restitution  may  be  awarded  by  the  Court  of  Quarter  Sessions,  as  justices 
of  the  peace  are  expressly  empowered  to  grant  it ;  and  in  this  respect  they  act 
as  judges  of  record  (3  B.  &  Ad.  688,  Littledale,  J.) ;  and  have  greater  power  than 
justices  of  Oyer  and  Terminer  and  Gaol  Delivery,  who  cannot  grant  restitution, 
but  can  only  punish  the  offender.  Hawk.  b.  1,  c.  64,  s.  61  ;  Bac.  Abr.  Forcible 
Entry  (F). 

It  seems  to  have  been  at  one  time  supposed  that  greater  force  was  necessary 
to  sustain  an  indictment  for  forcible  entry  at  common  law,  than  under  the  stat- 
ntes  (R.  V.  Bake,  3  Burr.  R.  1731)  ;  but  the  observations  of  Ld.  Kenyon,  in  R.  v. 
Wilson,  8  T.  R.  357,  seem  to  negative  this  distinction,  and  to  place  both  proceed- 
ings on  their  true  ground.     "  I  do  not  know,"  said  he,  "  that  it  has  ever  been 

436 


FORCIBLE  ENTRY  AND  DETAINER. 

(495)  Forcible  entry.     Form  in  use   in   Philadelphia.     First  count,  at 

common  laAV. 
(49G)  Second  count.     Entry  upon  freehold. 

decided  that  it  is  necessary  to  allege  a  greater  degree  of  force  in  an  indictment 
at  common  law  for  a  forcible  entry,  than  in  an  indictment  on  the  statutes  ;  there- 
tore  an  indictment  at  common  law,  charging  the  defendants  with  having  entered 
unlawfully  and  with  strong  hand,  is  good ; "  and  Le  Blanc  and  Lawrence,  JJ., 
added  that  the  words  toith  strong  hand  mean  something  more  than  vl  et  arrnis,  or 
a  common  trespass,  viz.,  the  degree  of  violence  amounting  to  a  breach  of  the 
public  peace,  and  therefore  indictable  as  forcible  entry.  Sec  8  T.  R.  361,  363. 
In  truth,  there  is  no  good  sense  in  any  distinction  as  to  the  degree  of  force  indict- 
able in  either  way ;  but  in  neither  case  will  a  mere  entry  by  an  open  door  or  win- 
dow, or  with  a  key,  however  procured,  as,  by  trick  and  contrivance,  suffice  ( Com. 
Dig.  Forcible  Entry  (A);  3  Hawk.  b.  1,  c.  64,  s.  26);  nor  an  entry  to  which 
the  possessor  is  induced  by  threats  of  destroying  his  cattle  or  goods  (Hawk.  b.  1 
c.  64,  s.  25)  ;  but  an  entry  effected  by  an  actual  breaking  of  a  dwelling-house,  or 
attended  by  an  actual  array  of  force,  will  be  indictable  in  either  form.  The  true 
distinction  is,  that  on  an  indictment  at  common  law  the  prosecutor  needs  only  to 
prove  a  peaceable  possession  at  the  time  of  the  ouster ;  and  that  then,  as  he 
alleges  no  title,  so  he  can  have  no  restitution :  while  in  an  indictment  on  the 
statute  of  Richard,  his  interest,  viz.,  a  seisin  in  fee,  must  be  alleged  ;  on  the  stat- 
ute of  James,  the  existence  of  a  term  or  other  tenancy ;  and  on  these  statutes 
restitution  will  be  granted.  1  Brevard,  119  ;  1  Greenl.  31.  It  must  be  observed, 
however,  that,  even  on  these  statutes,  proof  that  the  prosecutor  holds  colorably 
as  a  freeholder  or  leaseholder  will  suffice ;  and  that  the  coui-t  will  not,  on  the 
trial,  enter  into  the  validity  of  an  adverse  claim  made  by  the  defendant,  which 
he  ought  to  assert,  not  by  force,  but  by  action.  Per  Vaughan,  B.,  in  R.  v.  Wil- 
liams, Monmouth  Summer  Assizes,  1828,  Dickinson's  Q.  S.  378  ;  confirmed  on 
motion  for  a  new  trial.  And  see  Jayne  v.  Price,  5  Taunt.  325  ;  1  Marsh.  68,  S. 
C. ;  Dutton  v.  Tracy,  4  Conn.  79;  Res.  v.  Shryber,  1  Dall.  68;  People  v.  An- 
thony, 4  Johns.  198 ;  People  v.  Rickert,  8  Cow.  226. 

See  the  subject  generally  examined  in  Wh.  C.  L,  as  follows  :  — 

A.  Offence  generally. 

B.  Statutes. 

Pennsylvania. 

Forcible  entry,  §  2019. 
Virginia. 

Forcible  entry,  §  2020. 

Entry  with  strong  hand  and  multitude  of  people,  §  2021. 

Restitution  to  be  awarded,  §  2022. 

C.  Forcible  Entry,  &c.,  at  Common  Law. 

I.  Who  may  commit  the  offence,  §  2026. 

n.  Who  may  be  the  subject  of  it,  §  2030. 

III.  What  force  is  necessary,  §  2032. 

IV.  What  possession  the  prosecutor  must  have,  §  2042. 
V.  Indictment,  §  2047. 

437 


(489)  OFFENCES  AGAINST  PROPERTY. 

(497)  Tliird  count.     Entry  upon  leasehold. 

(498)  Breaking  and  entering  a  close  and  cutting  down  a  tree,  under 

the  Pennsylvania  act. 

(489)    General  Frame  of  indictment  at  common  law. 

That  A.  B.,  late  of,  &c.,  C.  D.,  late  of,  &c.,  and  E.  F.,  late  of, 
&c.,  together  with  divers  other  persons,  to  the  number  of  six  or 
more,  whose  names  are  to  the  jurors  aforesaid  as  yet  unknown, 
on,  &c.,  with  force  and  arms,  and  with  pistols,  staves,  and  other 
offensive  weapons,  &c.,  into  a  certain  messuage  or  garden(6) 
there  situate,  and  then(c)  and  there  being  in  the  peaceable  pos- 
session(d')  of  G.  H.,  unlawfully,  violently,  and  injuriously,  and 
with  a  strong-  hand.[e)  did  enter ;  and  that  the  said  A.  B.,  C.  D., 
and  E.  F.,  together  with  the  said  other  persons,  then  and  there, 
with  force  and  arms,  and  with  a  strong  hand,  unlawfully,  vio- 
lently, forcibly,  and  injuriously  did  expel,  amove,  and  put  out  the 
said  G.  H.  from  the  possession  of  the  said  messuage  and  garden, 
and  the  said  G.  H.,  so  as  aforesaid  expelled,  amoved,  and  put 

(6)  The  premises  must  be  described  with  certainty  ;  and  therefore  an  allega- 
tion that  the  defendant  entered  a  tenement  will  not  suffice.  3  Leon.  102  ;  Co. 
Lit.  6,  a;  Torrence  v.  Com.,  9  Barr,  184;  Van  Pool  v.  Com.,  1  Harris,  393. 
The  indictment  must  describe  the  premises  entered,  with  the  same  particularity 
as  in  ejectment.  Thus,  an  indictment  of  forcible  entry  into  a  messuage,  tene- 
ment, and  tract  of  land,  without  mentioning  the  number  of"  acres,  was  held  bad 
after  conviction.  M'Nair  et  al.  v.  Rempublicam,  4  Yeates,  326.  Where  the  words 
were,  "  a  certain  messuage  with  the  appurtenances,  for  a  term  of  years,  in  the  dis- 
trict of  Spartanburgh,"  it  was  adjudged  that  the  place  where  was  not  described 
with  sufficient  legal  certainty.  State  v.  Walker  and  Davidson,  Brev.  MSS.  It 
is  sufficient  to  describe  the  premises  as  "a  certain  close  of  two  acres  of  arable 
land,  situate  in  S.  township,  in  the  County  of  H.,  being  a  part  of  a  large  tract  of 
land  adjoining  lands  of  A.  and  B. "     Dean  et  al.  v.  Com.,  3  S.  &  R.  418. 

In  North  Carolina  the  building  must  be  averred  to  be  the  "  dwelling-house  " 
of  A.  B.,  &c.     State  v.  Morgan,  1  Wins.  (N.  C.)  246. 

(c)  See  2  Chit.  C.  L.  220,  222 ;  2  Q.  B.  Rep.  406. 

((/)  Possession  is  all  that  need  be  laid  at  common  law  (Burd  v.  Com.,  6  S.  & 
R.  252;  Res.  v.  Campbell,  1  Dall.  354J;  though  upon  this  averment  alone  resti- 
tution cannot  be  awarded.  Ante,  note  (a),  where  this  point  is  fully  discussed. 
Wh.  C.  L.  §  2047,  &c. 

(e)  These  words  are  vital ;  greater  force  must  be  averred  than  is  expressed 
by  the  words  vi  el  armis.  The  trespass  must  involve  a  breach  of  the  peace,  or 
directly  tend  to  it,  as  being  done  in  the  presence  of  the  prosecutor,  to  his  terror 
or  against  his  will.  State  v.  Mills,  2  Dev.  420.  But  see  Harding's  case,  1  Greenl. 
22. 

438 


FORCIBLE   ENTRY   AND   DETAINER.  (490) 

out  from  the  possession  of  the  same,  then  and  there,  with  force 
and  arms  and  with  a  strong  hand,  unlawfully,  violently,  forcibly, 
and  injuriously  have  kept  out,(/)  from  the  day  and  year  afore- 
said until  the  taking  out  of  this  inquisition, (g')  and  still  do  keep 
out,  to  the  great  damage  of  the  said  G.  H.,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3. 

(490)  Another  form  of  mme.Qi) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  with  an  axe  and  auger,  un- 
lawfully, violently,  forcibly,  injuriously,  and  with  a  strong  hand, 

(/)  The  same  description  and  degree  of  force  is  necessary  to  constitute  a 
forcible  detainer,  as  a  forcible  entry.     Dalt.  126;  Hawk.  b.  1,  c.  64,  s.  39. 

(<7)  No  indictment  can  warrant  an  award  of  restitution,  unless  it  alleges  that 
the  wrongdoer  both  ousted  the  party  aggrieved,  and  continued  in  possession  at 
the  time  of  finding  the  indictment ;  for  it  would  be  a  repugnancy  to  award  resti- 
tution to  one  who  never  was  in  possession,  and  vain  to  award  it  to  one  who 
does  not  appear  to  have  lost  it.     Hawk.  b.  1,  c.  64,  s.  41. 

(Ji)  This  count  was  sustained  in  Harding's  case,  1  Greenl.  22. 

"  If  the  facts  charged,"  said  Preble,  J.,  "  do  not  constitute  an  indictable  offence 
at  common  law,  no  sentence  can  be  pronounced  upon  the  defendant. 

"  The  earlier  authorities  do  sanction  the  doctrine,  that  at  common  law,  if  a 
man  had  a  right  of  entry  in  him,  he  was  permitted  to  enter  with  force  and  arms, 
when  such  force  was  necessary  to  regain  his  possession.  Hawk.  P.  C.  c.  64, 
and  the  authorities  there  cited.  To  remedy  the  evils  arising  from  this  supposed 
defect  in  the  common  law,  it  was  provided  by  statute  5  Rich.  H.  c.  7,  that  '  none 
should  make  any  entry  into  any  lands  or  tenements  but  in  cases  where  entry  is 
given  by  the  law ;  and  in  such  cases,  not  with  strong  hand  nor  with  multitude 
of  people  but  only  in  a  peaceable  and  easy  manner.'  The  authorities  are  numer- 
ous to  show  that  for  a  trespass  —  a  mere  civil  injury,  unaccompanied  with  actual 
force  or  violence,  though  alleged  to  have  been  committed  with  force  and  arms  — 
an  indictment  will  not  lie.  But  in  Rex  v.  Bathurst,  Say.  R.  305,  the  court  held, 
ihdki  forcible  e7ilr)/  into  a  77ian's  dwellincj-hoiise  was  an  indictable  offence  at  com- 
mon law,  though  the  force  was  alleged  only  in  the  formal  words  vi  et  armis.  In 
Rex  V.  Bake,  3  Burr.  1731,  it  was  held,  that  for  a  forcible  entry  an  indictment 
will  lie  at  common  law ;  but  actual  force  must  appear  on  the  face  of  the  indict- 
ment, and  is  not  to  be  implied  from  the  allegation,  that  the  act  was  done  vi  et 
armis.  In  the  King  v.  Wilson,  8  T.  R.  357,  an  indictment  at  common  law 
charging  the  defendant  with  having  unlawfully  and  with  a  strong  hand  entered 
the  prosecutor's  mill  and  expelled  him  from  the  possession,  was  held  good.  In 
this  latter  case.  Lord  Kenyon  remarks,  '  God  forbid  these  acts,  if  proved,  should 
not  be  an  indictable  offence ;  the  peace  of  the  whole  country  would  be  endan- 
gered, ii  it  were  not  so.'  The  case  at  bar  is  a  much  stronger  one,  than  either  of 
those  cited.  The  peace  of  the  State  would  indeed  be  jeopardized,  if  any  law- 
less individual  destitute  of  property  might,  without  being  liable  to  be  indicted 

439 


(491)  OFFENCES  AGAINST  PROPERTY. 

did  enter  into  the  dwelling-house  of  J.  C,  in  said  and  in 

his  actual  and  exclusive  possession  and  occupation  with  his 
family,  and  the  said  A.  B.  did  then  and  there  unlawfully,  vio- 
lently, forcibly,  injuriously,  and  with  a  strong  hand,  bore  into 
said  dwelling-house  with  said  auger,  and  cut  away  part  of  said 
house,  and  stove  in  the  doors  and  windows  thereof  with  said 
axe,  said  J.  C.'s  wife  and  children  being  in  said  house,  thereby 
putting  them  in  fear  of  their  lives,  &c. 

(491)  Against  one,  ^c,  at  commo7i  law,  with  no  averment  of  either 
leasehold  or  freehold  possession  iyi  the  p7'osecutor.(i) 

That  I.  K.,  at,  &c.,  on,  &c.,  unlawfully,  violently,  forcibly,  and 
injuriously  did  enter  into  a  certain  lot  of  ground  and  the  stable 

and  punished,  unlawfully,  violently,  and  with  a  strong  hand,  armed  with  an  axe 
and  auger,  forcibly  enter  a  man's  dwelling-house,  then  in  his  actual,  exclusive 
possession  and  occupancy  with  his  wife  and  children  —  slave  in  the  doors  and 
windows,  cutting  and  destroying,  and  putting  the  women  and  children  in  fear  of 
their  lives. 

"  The  second  objection,  that  no  seisin  is  alleged,  does  not  apply  to  indictments 
for  forcible  entries  at  common  law.  Under  the  statute  of  New  York  against 
forcible  entry,  the  party  aggrieved  has  restitution  and  damages  ;  and  hence  it  is 
necessary  that  the  indictment  should  state  the  interest  of  the  prosecutor.  The 
People  V.  Shaw,  cited  by  the  defendant's  counsel,  and  the  People  v.  King,  2 
Caines,  98,  are  cases  upon  the  statute  of  that  State.  In  Rex  v.  Bake,  Mr.  Jus- 
tice Wilmot  remarks  :  '  No  doubt  indictments  will  lie  at  cominon  law  for  a  forci- 
ble entry,  though  they  are  generally  brought  on  the  acts  of  Parliament.  On  the 
acts  of  Parliament  it  is  necessary  to  state  the  nature  of  the  estate,  because  there 
must  be  restitution ;  but  they  may  be  brought  at  common  law.'  In  the  King  v. 
Wilson,  Lord  Kenyon  says  :  '  No  doubt  the  offence  of  forcible  entry  is  indictable 
at  common  law,  though  the  statutes  give  other  remedies  to  the  party  aggrieved, 
restitution  and  damages ;  and  therefore  in  an  indictment  on  the  statutes,  it  is 
necessary  to  state  the  interest  of  the  prosecutor.'  Our  statute  contains  no  such 
provision,  and  gives  no  remedy  by  indictment.  It  simply  provides  a  process  to 
obtain  restitution,  leaving  the  parties,  the  one  to  his  action  for  damages,  the 
other  to  his  liability  to  be  indicted  and  punished  at  common  law. 

"  With  respect  to  the  third  objection,  it  is  alleged  in  the  indictment  that  the 
house  was  Gates'  dwelling-house,  in  his  actual  and  exclusive  possession  and  occu- 
pation with  his  family,  and  that  the  defendant  unlawfully  entered,  &c.  On  the 
whole  we  think  the  indictment  contains  sufficient  matter  to  warrant  a  judgment 
upon  the  verdict  which  has  been  found  against  the  defendant,  and  the  motion  in 
arrest  is  accordingly  overruled." 

{i)  Com.  V.  Kinsman,  Sup.  Ct.  Pa.  Dec.  T.  1830,  No.  13.  Sentence  was 
entered  on  this  indictment  after  a  plea  of  guilty. 

440 


FORCIBLE  ENTRY    AND    DETAINER.  (492) 

thereon  erected,  situated  between  North  Alley  and  South  Alley, 
and  between  Delaware  Fifth  and  Delaware  Sixth  streets  in  the 
said  city,  the  said  lot  of  ground  being  forty-nine  feet  north  and 
south  and  sixteen  feet  or  thereabouts  east  and  west  in  dimen- 
sion, then  and  there  being  in  the  peaceable  possession  of  one  T. 
L.,  and  that  the  said  I.  K.  then  and  there,  with  force  and  arms 
and  with  a  strong  hand,  unlawfully,  violently,  forcibly,  and  in- 
juriously did  expel,  amove,  and  put  out  the  said  T.  L.  from  the 
possession  of  the  said  premises,  and  the  said  T.  L.  so  as  afore- 
said expelled,  amoved,  and  put  out  from  the  possession  of  the 
same,  with  force  and  arms,  &c.,  and  with  a  strong  hand,  unlaw- 
fully, violently,  forcibly,  and  injuriously  has  kept  out,  from  the 
day  and  year  aforesaid  until  the  taking  of  this  inquisition,  and 
still  doth  keep  out,  and  other  wrongs  to  the  said  T.  L,  then  and 
there  did,  to  the  great  damage  of  the  said  T.  L.,  to  the  evil  ex- 
ample of  all  others  in  the  like  case  offending,  contrary,  &c.,  and 
against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(492)  Forcible  entry ^  ^e.,  into  a  freehold^  on  stat.  5  Hich.  ILQ'^ 

That  one  J.  N.,  &c.,  at,  &c.,  on,  &c.,  was  seized(^)  in  his  de- 
mesne as  of  fee,  of  and  in  a  certain  messuage,  with  the  appur- 
tenances, there  situate  and  being,  and  the  said  J.  N.,  being  so 
seized  thereof  as  aforesaid,  J.  S.,  late  of  the  parish  aforesaid,  in 
the  county  aforesaid,  laborer,  afterwards,  to  wit,  on  the  day  and 
year  last  aforesaid,  in  the  parish  aforesaid,  in  the  county  afore- 
said, into  the  said  messuage  and  appurtenances  aforesaid,  with 
force  and  arms  and  with  a  strong  hand,  unlawfully  did  enter, 
and  the  said  J.  N.  from  the  peaceable  possession  of  the  said 
messuage  with  the  appurtenances  aforesaid,  then  and  there,  with 
force  and  arms  and  with  a  strong  hand,  unlawfully  did  expel  and 
put  out,  and  the  said  J.  N.  from  the  possession  thereof  so  as 
aforesaid,  with  force  and  arms  and  with  a  strong  hand,  being  un- 
lawfully expelled  and  put  out,  the  said  J.  S.  from  the  aforesaid 
third  day  of  August,  in  the  year  aforesaid,  until  the  day  of  the 
taking  of  this  inquisition,  from  the  possession  of  the  said  mes- 
suage, with  the  appurtenances   aforesaid,  with  force  and  arms 

(j)  Archbolfl's  C.  P.  5th  Am.  ed.  709. 

(Ic)  See  Fitch  v.  Rempublicam,  3  Yeates,  49;  S.  C.  4  Dall.  212;  Resp.  r. 
Sbryber,  1  Dall.  68. 

441 


(494)  OFFENCES  AGAINST  PROPERTY. 

and  with  a  strong  hand,  unlawfully  and  injuriously  then  and  there 
did  keep  out,  and  still  doth  keep  out,  to  the  great  damage  of  the 
said  J.  N.,  against,  &c.,  and  against,  &c.  ( Conclude  as  in  book  1, 
chapter  3.) 

(493)  Forcible  entry  into  a  leasehold^  on  stat.  21  Jac.  L(V) 

(Same  as  in  last  precedent,  adapting'  the  form,  however,  to  a 
term  of  years,  as  thus) : 

That  J.  N.,  &c.,  on,  &c.,  at,  &c.,  was  possessed  of  a  certain 
messuage,  with  the  appurtenances,  there  situate  and  being,  for  a 
certain  term  of  years,  whereof  divers,  to  wit,  ten  years  were  then 
to  come,  and  are  still  unexpired,  and  the  said  J.  N.  being  so  pos- 
sessed thereof,  &c.  {as  in  last  precedent). 

(494)  Forcible  detainer,  on  stat,  8  Hen.  VIIL  or  21  Jae.  1.(70) 

( The  same  as  in  the  last  two  precedents  respectively,  to  the  end 
of  the  statement  of  the  seisin  or  possession,  then  proceed  thus) : 

And  the  said  J.  N.,  being  so  seized  [or  possessed)  thereof,  J.  S., 
late,  &c.,  into  the  said  messuage,  with  the  appurtenances  afore- 
said, unlawfully  did  enter,  and  the  said  J.  N.  from  the  peaceable 
possession  of  the  said  messuage,  with  the  appurtenances  afore- 
said, then  and  there  unlawfully  did  expel  and  put  out,  and  the 
said  J.  N.  from  the  possession  thereof,  so  as  aforesaid,  being  un- 
lawfully expelled  and  put  out,  the  said  J.  S.  from  the  said  third 
day  of  August,  in  the  year  aforesaid,  until  the  day  of  the  taking 
of  this  inquisition,  from  the  possession  of  the  said  messuage, 
with  the  appurtenances  aforesaid,  with  force  and  arms  and  with  a 
strong  hand,  unlawfully  and  injuriously  then  and  there  did  keep 
out,  and  the  said  messuage  with  the  appurtenances  and  the  pos- 
session thereof,  then  and  there  unlawfully  and  forcibly  did  hold, 
and  still  doth  hold  from  the  said  J.  N.,  to  the  great  damage  of 
the  said  J.  N.,  against,  &c.,  and  against,  &c.  ( Conclude  as  in  book 
1,  chapter  3.) 

CO  Archbold's  C.  P.  5th  Am.  ed.  712.     See  Pa.  r.  Elder,  1  Smith's  Laws,  3. 
(ill)  Archbold's  C.  P.  5th  Am.  ed.  712. 

442 


FORCIBLE    ENTRY   AND    DETAINER.  (496) 

(495)  Forcible  entry.  Form  in  use  in  Philadelphia.  First  county 
at  common  law.(n) 
That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  together  with  divers  other 
evil  disposed  persons,  to  the  number  of  four  or  more,  whose 
names  are  to  the  jurors  aforesaid  as  yet  unknown,  with  force 
and  arms  and  with  a  strong  hand,  unlawfully,  violently,  forcibly, 
and  injuriously  did  enter  into  [describing^  premises),  then  and 
there  being  in  the  peaceable  possession  of  C.  D.,  and  that  the 
said  A.  B.,  with  the  said  evil  disposed  persons,  then  and  there, 
with  force  and  arms  and  with  a  strong  hand,  unlawfully,  vio- 
lently, forcibly,  and  injuriously  did  expel,  remove,  and  put  out 
the  said  C.  D.  from  the  possession  of  the  said  premises,  with  the 
appurtenances ;  and  the  said  C.  D.  so  as  aforesaid  expelled,  re- 
moved, and  put  out  from  the  possession  of  the  same,  with  force 
and  arms  and  with  a"  strong  hand,  unlawfully,  violently,  forcibly, 
and  injuriously  have  kept  out  from  the  same,  from  the  day  and 
year  aforesaid,  until  the  taking  of  this  inquisition,  and  still  do 
keep  out;  and  other  wrongs  to  the  said  C  D.  then  and  there  did, 
to  the  great  damage  of  the  said  C.  D.,  contrary,  &c.,  and  against, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

(496)  Second  count.     Entry  upon  freehold. 

That  the  said  C.  D.,  on,  &c.,  at,  &c.,  was  seized  in  his  demesne 
as  of  fee,  of  and  in  the  messuage,  tenement,  and  premises  here- 
inbefore specified  and  described,  with  the  appurtenances  thereto; 
and  the  said  C.  D.  being  so  seized  thereof  as  aforesaid,  the  said 
A.  B.  afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at  the 
county  and  within  the  jurisdiction  aforesaid,  into  the  said  mes- 
suage, tenement,  premises,  and  appurtenances  aforesaid,  with 
force  and  arms  and  with  a  strong  hand,  unlawfully  did  enter, 
and  the  said  C.  D.  from  the  peaceable  possession  of  the  said 
messuage,  tenement,  premises,  and  appurtenances  as  aforesaid, 
then  and  there,  with  force  and  arms  and  with  a  strong  hand,  un- 
lawfully did  expel  and  put  out ;  and  the  said  C.  D.  from  the  pos- 
session thereof  so  as  aforesaid,  with  force  and  arms  and  with  a 
strong  hand  being  unlawfully  expelled  and  put  out,  from  the  day 

(n)  This  form  includes  a  count  at  common  law,  and  a  count  on  each  of  the 
statutes  mentioned  ante,  489,  note. 

443 


(498)  OFFENCES  AGAINST  PROPERTY. 

and  year  aforesaid,  until  the  day  of  the  taking  of  this  inquisi- 
tion, from  the  possession  of  the  said  messuage,  tenement,  prem- 
ises, and  appurtenances,  with  force  and  arms  and  with  a  strong 
hand,  unlawfully  and  injuriously  then  and  there  did  keep  out, 
and  still  do  keep  out,  to  the  great  damage  of  the  said  C.  D., 
contrary,  &c.,  and  against,  &c.  ( Conclude  as  in  hook  1,  chap- 
ter 3.) 

(497)   Third  count.     Entry  upon  leasehold. 

That  the  said  C.  D.,  on,  &c.,  at,  &c.,  was  possessed  of  the  said 
messuage,  tenement,  premises,  and  appurtenances,  as  hereinbe- 
fore described,  for  a  certain  term  of  years,  whereof  divers,  to  wit, 
two  years,  were  then  to  come,  and  are  still  unexpired  ;  and  that 
the  said  C.  D,  being  so  possessed  thereof,  the  said  A.  B.  after- 
wards, to  wit,  on  the  day  and  year  aforesaid,  at  the  county  and 
within  the  jurisdiction  aforesaid,  into  the  said  messuage,  tene- 
ment, premises,  and  appurtenances  as  aforesaid,  with  force  and 
arms  and  with  a  strong  hand,  unlawfully  did  enter,  and  the  said 
C.  D.  from  the  peaceabffe  possession  of  the  said  messuage,  tene- 
ment, premises,  and  appurtenances  as  aforesaid,  then  and  there, 
with  force  and  arms  and  with  a  strong  hand,  unlawfully  did  ex- 
pel and  put  out ;  and  the  said  C,  D.  from  the  possession  thereof 
so  as  aforesaid,  with  force  and  arms  and  with  a  strong  hand,  be- 
ing unlawfully  expelled  and  put  out,  from  the  day  and  year  afore- 
said until  the  taking  of  this  inquisition,  from  the  possession  of 
the  said  messuage,  tenement,  premises,  and  appurtenances,  with 
force  and  arms  and  with  a  strong  hand,  unlawfully  and  injuriously 
then  and  there  did  keep  out,  and  still  do  keep  out,  to  the  great 
damage  of  the  said  C.  D.,  contrary,  &c.,  and  against,  &c.  ( Con- 
clude as  in  book  1,  chapter  3.) 

(498)  For  breaking  and  entering  a  close  and  cutting  down  a  tree, 
under  the  Pennsylvania  act. 

That  D.  B.  and  J.  T.,  &c.,  on,  &c.,  at,  &c.,  into  a  certain  close 
of  the  honorable  J.  H.,  Esq.,  situate  in  the  township  of  Lancas- 
ter, and  in  and  upon  the  possession  of  the  said  J.  H.,  Esq.,  into 
which  the  said  D.  B.  and  J.  T.  had  not  the  legal  right  of  entry, 
did  enter,  and  one  oak-tree  of  the  said  J.  H.  then  and  there  grow- 
ing, then  and  there  did  cut  down  and  fell,  they,  the  said  defend- 
444 


FORCIBLE  ENTRY  AND  DETAINER.  (498) 

ants,  well  knowing  the  said  oak-tree  to  be  growing  on  the  land 
of  the  said  J.  H.,  and  that  the  land  on  which  the  said  oak-tree 
.was  growing  die'  not  belong  to  them,  the  said  defendants,  or 
either  of  them,  or  to  any  person  by  whom  they,  or  either  of  them, 
were  authorized,  contrary,  &c.,  and  against,  &c.(o)  ( Conclude  as 
in  book  1,  chapter  3.) 

(o)  This  form  was  sustained  by  the  Supreme  Court  of  Pennsylvania  in 
Moyer  v.  Com.,  7  Barr,  439.  The  indictment  standing  in  the  place  of  this  in 
the  first  edition  of  this  work,  is  defective.     See  4  Am.  L.  J.  695. 

445 


(499)  OFFENCES  AGAINST  PROPERTY. 


CHAPTER  X. 

CHEATS. 

I.  CHEATS  AT  COMMON  LAW. 

ir.  FALSE  PERSONATION  OF  BAH. 
HL  SECRETING  GOODS    WITH    INTENT  TO    DEFRAUD    CREDITORS,    AND 

FRAUDULENT  CONVEYANCE. 
IV.   FRAUDULENT  INSOLVENCY  IN  PENNSYLVANIA. 

V.  VIOLATION  OF  FACTOR  LAW. 
VI.  OBTAINING  GOODS  BY  FALSE  PRETENCE. 

I.  CHEATS  AT  COMMON  LAW. 

(499)  Selling  by  false  weight  or  measure. 

(500)  Against  a  baker  for  selling  to  poor  persons  loaves  under  weight, 

and  obtaining  pay  from  them,  under  the  pretence  that  they 
were  of  full  weight. 

(501)  Cheating  at  common  law,  by  false  cards. 

(502)  Second  count.     Cheating  at  common  law,  at  a  game  of  dice 
called  "  passage." 

(503)  Information.     Passing    a    sham    bank   note,   the   offence   being 

charged  as  a  false  token. 

(504)  Obtaining  goods  by  means   of  a  sham  bank   note,   as  a  misde- 

meanor at  common  law. 

(505)  Cheat  by  means  of  a  counterfeit  letter. 

(499)  Selling  by  false  weiglit  or  measure.(^a) 

That  A.  B.,  late  of,  &c.,  on,  &c.,  and  from  thence  until  the  tak- 
ing of  this  inquisition,  did  use  and  exercise  the  trade  and  busi- 

(a)  Dickinson's  Q.  S.  6th  ed. 

(^Cheats  at  common  laio  generally/.)  A  mere  private  imposition  short  of  felony, 
and  effected  by  a  "  naked  lie,"  without  the  association  of  artful  device  or  false 
token,  voucher,  order,  &c.,  is  not  indictable  as  a  cheat  at  common  law,  unless  it 
is  public  in  its  nature,  and  calculated  to  defraud  numbers,  or  to  injure  the  gov- 
ernment or  the  public  in  general.  1  East,  P.  C.  817,  821 ;  Dickinson's  Q.  S.  290  ; 
and  see  10  A.  &  E  37  ;  2  Per.  &  Dav.  334.  Per  Ld.  Denman.  Forcible  illustra- 
tions of  the  distinction  between  a  cheat  which  becomes  indictable  or  otherwise, 
as  it  acquires  or  loses  generality,  are  found  in  Weicrbach  v.  Trone,  2  W.  &  S. 
408  ;  and  Com.  v.  V^rren,  6  Mass.  72.     Putting  a  stone  in  a  single  pound  of 

446 


CHEATS.  (499) 

ness  of  a  grocer,  and  during  that  time  did  deal  in  the  buying  and 
selling  by  weight  of  (tea,  &c.),  and  of  divers  other  goods,  wares, 

butter,  for  the  purpose  of  cheating  as  single,  is  not  an  indictable  offence  ;  put- 
ting a  series  of  stones  in  a  scries  of  pounds  of  butter,  for  the  purpose  of  de- 
frauding the  public,  is.  For  in  other  cases  prudence  and  caution  would  supply 
sufficient  security  (I  Hawk.  c.  71,  s.  2 ;  2  East,  P.  C.  818;  R.  v.  Gibbs,  1  East, 
R.  173)  ;  but  the  selling  by  false  weights  and  measures,  though  to  one  person 
only,  or  producing  false  tokens,  or  taking  other  like  methods  to  cheat,  which 
cannot  be  guarded  against  by  ordinary  care,  were  always  held  indictable  of- 
fences. R.  V.  Young,  3  T.  R.  98,  per  Buller  J. ;  R.  v.  Wheatly,  1  Bla.  R.  273  ; 
10  A.  &  E.  37;  2  Burr.  1125,  S.  C. ;  State  v.  Patillo,  4  Hawks,  348;  Com.  v. 
Warren,  6  Mass.  72  ;  Com.  v.  Morse,  2  Mass.  138  ;  Hiel  v.  State,  1  Yerg.  76  ; 
People  V.  Stone,  9  Wend.  182;  State  v.  Scroll,  1  Rich.  244;  People  v.  Miller, 
14  Johns.  371 ;  State  v.  Wilson,  2  Rep.  Con.  Ct.  135  ;  People  v.  Babcock,  7  Johns. 
201;  State  v.  A^iughan,  1  Bay,  282 ;  Cross  v.  Peters,  1  Greenl.  367;  Com.  v. 
Speer,  2  Va.  Cases,  65  ;  Lambert  v.  People,  9  Cow.  578;  Com.  v.  Hearsey,  1 
Mass.  137;   Wh.  C  L.  §  2051. 

Such  are  the  following  among  other  frauds.  Those  affecting  the  administra- 
tion of  public  justice,  as  counterfeiting  a  creditor's  authority  to  discharge  his 
debtor  from  prison  (though,  if  genuine,  it  would  be  good),  whereby  his  libera- 
tion was  effected  (R.  v.  Fawcitt,  2  East,  P.  C.  826,  862)  ;  or  endangering  the 
public  health,  by  selling  unwholesome  provisions,  unfit  for  the  food  of  man, 
whether  to  the  public  generally  (R.  v.  Treeve,  2  East,  P.  C.  821),  or  under  a  con- 
tract with  government  for  supplies  to  particular  bodies,  as  foreign  prisoners  of 
war  under  the  king's  protection  (lb.)  ;  or  the  military  asylum  at  Chelsea.  R.  v. 
Dixon,  2  Campb.  12  ;  3  M.  &  S.  11,  S.  C.  So  in  Pennsylvania,  an  indictment 
was  sustained  against  a  baker  in  the  employ  of  the  United  States  army,  in 
baking  two  hundred  and  nineteen  barrels  of  bread,  and  marking  them  as  weigh- 
ing eighty-eight  pounds  each,  when,  in  fact,  they  severally  weighed  but  sixty- 
eight  pounds.  Resp.  v.  Powell,  1  Dall.  47.  See  2  Rep.  Con.  Ct.  139.  But  this 
case  cannot  now  be  considered  law  (see  Wh.  C.  L.  §  2051,  &c.),  since  a  mere 
sale  at  under  weight  is  not  indictable  at  common  law  (however  it  may  be  as  a 
false  pretence),  unless  a  false  token  or  weight  is  used.  R.  v.  Eagleton,  33  Eng. 
Law  &  Eq.  545.  Frauds  calculated  to  affect  all  persons,  as  selling  by  false 
weights  and  measures  (R.  v.  Wheatly,  1  Bla.  R.  273;  R.  v.  Young,  3  T.  R.  98; 
2  Burr.  1125,  S.  C,  overruling  R.  v.  Wood,  1  Sess.  Ca.  217);  counterfeiting 
tokens  of  public  authenticity,  as  the  alnager's  seal  on  cloth,  while  those  duties 
remained  unrepealed  by  11  &  12  Wm.  HI.  c.  20,  s.  2,  (R.  v.  Edwards,  Tre- 
maine's  P.  C.  103)  ;  playing  with  false  dice  (R.  v.  Leeser,  Cro  Jac.  497)  ;  obtain- 
ing money  from  a  soldier  on  a  false  pretence  of  having  a  power  to  discharge  him 
(Serlested's  case.  Leach,  202)  ;  or  getting  the  king's  bounty  by  enlisting  as  a  sol- 
dier, being  an  apprentice,  liable  to  be  retaken  by  a  master.  R.  v.  Joseph  Jones,  2 
East,  P.  C.  822  ;  1  Leach,  174,  S.  C.  In  Virginia  the  rule  has  been  pressed  much 
further,  it  having  been  held  that  the  procuring  goods,  &c.,  by  means  of  a  note 
purporting  to  be  a  bank  note  of  the  Ohio  Exporting  and  Importing  Company, 
there  being  no  such  bank  or  company,  is  a  cheat  punishable  by  indictment  at 

447 


(499)  OFFENCES  AGAINST  PROPERTY. 

and  merchandise,  to  wit,  at,  &c.,  aforesaid;  and  that  the  said  A. 
B.,  contriving  and  fraudulently  intending  to  cheat  and  defraud 
the  people  of  the  said  State,  whilst  he  used  and  exercised  his 
said  trade  and  business,  to  wit,  &c.,  and  on  divers  other  days  and 

common  law,  if  the  defendant  knew  that  it  was  such  a  false  note.  It  is  nec- 
essary in  such  case  to  aver  the  scienter  in  the  indictment.  Com.  v.  Speer,  2 
Va.  Cases,  65;  but  see  State  v.  Patillo,  4  Hawks,  348.  So,  where  the  defend- 
ants purchased  goods  from  the  prosecutor's  clerk,  and  gave  in  payment  an 
instrument  purporting  to  be  a  five  dollar  bill  of  the  Bank  of  Tallahassee,  in 
Florida,  the  blanks  of  which  were  filled  up,  except  those  opposite  the  words 
"  cashier  "  and  "  president ;  "  but  in  those  blanks  an  illegible  scrawl  was  writ- 
ten, which  on  careless  inspection,  might  have  been  mistaken  for  the  names  of 
those  officers,  and  the  defendants  knew,  before  they  passed  the  instrument,  that 
it  was  worthless ;  it  was  held  in  South  Carolina,  that  they  were  guilty,  at 
common  law,  of  cheating  by  a  false  pretence.  State  v.  Stroll  and  Carr,  1  Rich. 
244. 

The  following  are  some  instances  of  frauds  on  individuals,  which,  not  being 
effected  in  the  course  of  general  practice,  or  by  means  generally  calculated  to  in- 
jure the  public,  are  not  indictable  at  common  law  :  selling  a  smaller  as  and  for  a 
larger  quantity  of  an  article,  if  without  using  false  weights  or  measures ;  this  being 
a  deception  which  could  not  have  taken  effect  but  for  the  buyer's  carelessness 
in  accepting  without  measure  (R.  v.  Wheatly,  2  Burr.  1125  (the  beer  case); 
Cowp.  324  ;  East,  P.  C.  817,  819)  ;  or  inducing  an  illiterate  person  to  sign  a  deed 
by  reading  it  to  him  falsely.  State  v.  Justice,  2  Dev.  199.  The  like  where  a  mil- 
ler who  had  received  good  barley  to  grind,  delivered  in  return  meal  of  musty  and 
unwholesome  barley,  or  of  barley  mixed  with  other  grain,  but  not  for  the  food 
of  man,  and  the  mill  not  being  a  soke  mill,  to  which  certain  residents  were 
obliged  to  resort  to  grind  their  corn.  R.  v.  Haynes,  4  M.  &  S.  220.  See  6  East, 
133.  So  as  to  obtaining  money  of  A.,  by  pretending  to  come  by  command  of 
B.  to  receive  money  (R.  v.  Jones,  2  Ld.  Raym.  1013;  Salk.  379  ;  6  Mod.  105,  S. 
C. ;  see  2  East,  P.  C.  818 ;  1  Hawk.  c.  71,  s.  2)  ;  or  detaining  part  of  corn  sent 
to  be  ground.  Channel's  case,  Stra.  793.  On  the  same  j^rinciple,  it  is  not  an 
indictable  offence  to  get  possession  of  a  note,  under  pretence  of  wishing  to 
look  at  it,  and  carrying  it  away  and  refusing  to  return  it  (People  v.  Miller,  14 
Johns.  37)  ;  nor  to  obtain  money  by  falsely  representing  a  spurious  note  of  hand 
to  be  genuine  (State  v.  Stroll,  1  Rich.  244 ;  State  v.  Patillo,  4  Hawks,  348 ;  see 
Com.  V.  Speer,  2  Va.  Cases  C5) ;  nor  to  pretend  to  have  money  ready  to  pay  a 
debt,  and  thereby  obtaining  a  receipt  in  discharge  of  the  debt,  without  paying 
the  money  (People  v.  Babcock,  7  Johns.  201)  ;  nor  to  put  a  stone  in  a  pound  of 
butter  so  as  to  increase  its  weight  (Weierbach  v.  Trone,  2  W.  &  S.  408)  ;  nor 
to  obtain  goods  on  credit,  by  falsely  pretending  to  be  in  trade,  and  to  keep  a 
grocery  shop,  and  giving  a  note  for  the  goods,  in  a  fictitious  name  (Com.  v. 
Warren,  6  Mass.  72) ;  nor  to  obtain,  in  violation  of  an  agreement  and  by  false 
pretences,  possession  of  a  deed  lodged  in  a  third  person's  hands  as  an  escrow. 
Com.  V.  Hearsey,  1  Mass.  137.  See  Wh.  C.  L.  §  2051,  &c. 
448 


CHEATS.  (500) 

times  between  that  day  and  the  day  of  taking  of  this  inquisi- 
tion, at,  &c.,  did  knowingly,  wilfully,  falsely,  fraudulently,  and 
deceitfully  keep  in  a  certain  shop  there,  wherein  he  the  said  A. 
B.  did  so  as  aforesaid  carry  on  his  said  trade,  a  certain  false  pair 
of  scales  for  the  weighing  of  goods,  wares,  and  merchandises  by 
him  sold  in  the  way  of  his  said  trade,  which  said  scales  were 
then  and  there,  by  artful  and  deceitful  contrivance,  so  made  and 
constructed  as  to  cause  every  quantity  of  goods,  wares,  and  mer- 
chandises weighed  therein  and  sold  thereby,  to  appear  of  greater 
weight  than  the  real  and  true  weight,  by  one  tenth  part  of  such 
apparent  weight ;  and  that  the  said  A.  B.,  on,  &c.,  aforesaid,  at, 
&c.,  aforesaid  (he  the  said  A.  B.  then  and  there  well  knowing 
the  said  scales  to  be  false  as  aforesaid),  did  knowingly,  wilfully, 
and  fraudulently  sell  and  utter  to  one  C.  D.,(a^)  a  citizen  of  the 
said  State,  certain  goods  in  the  way  of  his  said  trade,  to  wit,  a 
large  quantity  of  tea,  weighed  in  and  by  the  said  false  scales, 
and  as  and  for  ten  pounds  weight  of  tea,  whereas,  in  truth  and 
in  fact,  the  weight  of  the  said  tea  so  sold  as  aforesaid,  was  short 
and  deficient  of  the  said  weight  of  ten  pounds,  by  one  tenth  part 
of  the  said  weight  of  ten  pounds,  to  wit,  at,  &c.,  aforesaid, 
against,  &c.     {Conclude  as  in  book  1,  chapter  3.) 

(500)  Against  a  baker  for  selling  to  poor  persons  loaves  under 
weighty  and  obtaining  pay  from  iliem^  under  the  pretence 
that  they  were  of  full  weight.(a) 

That  heretofore,  to  wit,  on  the  21st  day  of  January,  1854,  at 
the  parish  of  Great  Yarmouth,  in  the  borough  of  Great  Yar- 
mouth, and  within  the  jurisdiction  of  this  court,  J.  Eagleton,  of 
the  parish  aforesaid,  in  the  borough  aforesaid,  baker,  unlawfully, 
knowingly,  and  designedly,  did  falsely  pretend  to  one  William 
Christmas  Nutman,  then  being  relieving  officer  of  the  said  parish 
of  Great  Yarmouth,  that  he  the  said  John  Eagleton  had,  on  the 
day  and  year  last  aforesaid,  supplied  and  delivered  to  one  Sam- 
uel Lingwood,  he  being  a  poor  person  of  the  said  parish,  two 
loaves  of  bread,  and  that  each  of  the  said  two  loaves  of  bread 

(a})  It  is  better  to  aver  a  particular  person  defrauded,  though  it  seems 
enough,  if  such  be  the  fact,  to  allege  the  sale  to  have  been  to  divers  citizens 
unknown.    2  Stark.  C.  P.  46  7. 

(a)  This  count  was  sustained  in  R.  v.  Eagleton,  33  Eng.  Law  &  Eq.  545. 

VOL.  I.  -  29  ^_j^g 


(501)  OFFENCES  AGAINST  PROPERTY. 

then  weighed  three  pounds  and  one  half  of  a  pound,  by  means  of 
which  said  fabe  pretence  the  said  John  Eagleton  did  then  and 
there  unlawfully  attempt  and  endeavor,  fraudulently,  falsely,  and 
unlawfully,  to  obtain  from  the  guardians  of  the  poor  of  the  said 
parish,  a  sum  of  money,  to  wit,  the  sum  of  Is.  of  the  moneys  of 
the  said  guardians,  with  the  intent  thereby  then  and  there  to  de- 
fraud ;  whereas,  in  truth  and  in  fact,  the  said  two  loaves  of  bread 
did  not  each  weigh,  nor  did  either  of  them  weigh,  three  pounds 
and  one  half  of  a  pound,  against  the  form  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  of  our  lady  the 
queen,  her  crown  and  dignity. 

(501)   Cheating  at  common  law,  hy  false  cards. (^b} 

That  A.  B.  et  al,  being  persons  of  dishonest  conversation,  and 
common  gamblers  and  deceivers,  with  false  dice  and  cards,  on, 
&c.,  at,  &c.,  contriving,  practising,  and  falsely,  fraudulently,  and 
deceitfully  intending  one  A.  S.,  with  false  cards  and  false  play, 
falsely,  unlawfully,  unjustly,  fraudulently,  and  deceitfully  to  de- 
ceive and  defraud,  and  from  the  said  A.  S.,  by  means  of  the  said 
false  cards  and  false  play,  craftily  and  subtly,  falsely,  fraudulently, 
and  deceitfully,  different  sums  of  money  to  acquire  and  obtain, 
then  and  there  did  solicit,  incite,  provoke,  and  procure  the  said 
A.  S.  to  play  with  them,  the  said  A.  B.  et  al.,  at  a  certain  unlaw- 
ful game,  called  whist,  for  divers  sums  of  money,  by  means 
whereof  the  said  A.  S.  did  then  and  there  play  with  the  said  A. 
B.,  &c.,  at  the  said  unlawful  game,  called  whist,  for  divers  sums 
of  money,  and  that  the  said  A.  B.  et  al.  did  then  and  there,  with 
force  and  arms,  at  the  said  unlawful  game,  called  whist,  by 
means  of  false  cards  and  false  play,  subtly,  falsely,  unlawfully, 
and  fraudulently  receive,  have,  and  obtain  into  their  own  hands 
and  possession,  the  sum  of  eighty  pounds  of  lawful  moneys  of 
the  said  A.  S.  and  from  the  said  A.  S.,  and  the  same  did  then 
and  there  carry  away,  to  the  great  damage,  &c.,  and  against, 
&c.(c)     ( Conclude  as  in  hook  1,  chapter  3.) 

(6)   Stark.  C.  P.  444. 

(c)  R.  V.  Arnope,  Trem.  91 ;  and  see  R.  w.  Betsworth,  Trem.  93. 

450 


CHEATS.  (503) 

(502)  Second  count.     Cheating  at  common  law^  at  a  game  of  dice 

called  *■'•  passaged 
That  the  defendants,  being  such  persons  as  aforesaid,  on,  &c., 
at,  &c.,  did  solicit,  incite,  provoke,  and  procure  the  said  A.  S.  to 
play  with  them,  the  said  A.  B.  et  ah,  at  a  certain  unlawful  game, 
called  passage,  for  divers  sums  of  money,  by  means  whereof  the 
said  A.  S.  did  then  and  there  play  with  the  said  A.  B.  et  al.,  at 
the  said  unlawful  game,  called  passage,  for  divers  sums  of  money, 
and  that  the  said  A.  B.  et  al.  did  then  and  there,  with  false  dice, 
and  by  false  throwing  of  the  same,  that  is  to  say,  by  slurring  the 
said  dice,  subtly,  falsely,  unlawfully,  and  fraudulently  receive, 
have,  and  obtain  into  their  own  hands  and  possession,  the  sum 
of  eighty  pounds  of  the  lawful  moneys  of  the  said  A.  S.  and 
from  the  said  A.  S.,  and  the  same  did  then  and  there  carry  away, 
to  the  great  damage,  &c.,  and  against,  &c.  ( Conclude  as  in  book 
1,  chapter  3.) 

(503)  Information.     Pasnng  a  sham  hank  note,  the  offence  being 

charged  as  a  false  token.(d) 

D.  K.,  attorney  to  the  State  of  Connecticut,  for  the  County  of 
New  Haven,  now  here  in  court,  information  makes  that  G.  B.  S., 
of  the  town  of  New  Haven,  in  the  County  of  New  Haven,  on, 
&c.,  did  wilfully  and  designedly,  and  with  intent  to  cheat  and  de- 
fraud one  F.  W.  L,  of  said  town  of  New  Haven,  utter  and  pass 
to  the  said  F.  W.  L,  as  money,  a  certain  false  token  made  and  exe- 
cuted after  the  general  similitude  of  a  bill  of  a  banking  company 
intended  as  money,  and  purporting  to  be  a  bank  bill  of  the  de- 
nomination of  five  dollars,  and  to  have  been  issued  by  a  banking 
company  or  corporation  in  the  State  of  New  York,  by  and  under 
the  name  of  "  The  Globe  Bank,"  and  purporting  also  to  be  signed 
by  N.  B.,  as  president,  and  to  be  countersigned  by  S.  D.  D.,  as 
cashier  thereof;  which  false  token  is  of  the  following  purport  and 
effect,  that  is  to  say  {here  set  out  the  token  or  bill) ;  whereby  and 
by  means  of  said  false  token  the  said  G.  B.  S.  did  then  and  there 
knowingly  and  fraudulently  obtain  from  the  said  F.  W.  I.  certain 
goods,  the  property  of  the  said  F.  W.  I.,  that  is  to  say,  one  pair 

(d)  On  this  information,  which  was  drawn  by  Mr.  Kimberly,  of  New  Haven, 
the  defendant  was  convicted  and  sentence  passed. 

451 


(504)  OFFENCES  AGAINST  PROPERTY. 

of  boots,  of  the  value  of  five  dollars;  whereas,  in  truth  and  in 
fact,  at  the  time  when  said  false  token  was  so  uttered  and  passed 
to  the  said  F.  W.  I.,  no  such  banking  company  or  corporation 
existed  in  the  State  of  New  York  as  "  The  Globe  Bank,"  nor 
did  such  banking  company  or  corporation  ever  have  existence  in 
said  State  of  New  York,  nor  was  there  at  the  time  when  said 
false  token  was  uttered  and  passed  to  the  said  F.  W.  I.  as  afore- 
said, or  at  any  other  time,  any  banking  company  or  corporation 
in  the  State  of  New  York  known  by  or  doing  business  under 
the  name  of  "  The  Globe  Bank,"  but  said  pretended  bank  bill, 
and  pretended  signatures  thereto,  were  and  are  wholly  false,  fic- 
titious, and  fraudulent.  All  which  is  to  the  great  damage  and 
deception  of  the  said  F.  "W.  L,  against,  &c.,  and  contrary,  &c. 

Whereupon  the  attorney  prays  the  advice  of  this  honorable 
court  in  the  premises. 

(504)    Obtaining  goods  hy  means  of  a  sham  hank  note,  as  a  misde- 
meanor at  common  law. 

That  J.  S.,  &c.,  on,  &c.,  at,  &c.,  falsely  and  deceitfully  did 
obtain  and  get  into  his  hands  and  possession,  from  one  T.  C, 
three  yards  of  velvet,  &c.,  of  the  value  in  the  whole  of  nine  dol- 
lars eighty-seven  and  a  half  cents,  of  the  goods  and  chattels, 
wares  and  merchandise  of  the  said  T.  C,  and  bank  notes  and 
money  of  the  said  T.  C.  to  the  further  amount  of  ten  dollars  and 
twelve  and  a  half  cents,  by  color  and  means  of  a  certain  false 
note  and  token,  purporting  to  be  a  bank  note  for  twenty  dollars, 
issued  and  purporting  to  be  payable  on  demand  by  the  Ohio 
Exporting  and  Importing  Company,  at  their  bank  in  Cincinnati, 
and  purporting  to  be  subscribed  by  one  Z.  S.,  president,  and 
countersigned  by  J.  L.,  cashier,  and  which  said  false  note  the 
said  T.  C.  believed  to  be  a  true  bank  note  for  twenty  dollars  ; 
and  that  he  the  said  J.  S.  did  thereby  and  therefor  procure  the 
said  T.  C.  then  and  there  to  deliver  to  him  the  said  J.  S.  the 
goods  and  chattels,  wares,  merchandise,  bank  notes,  and  money 
of  him  the  said  T.  C.  aforesaid,  he  the  said  J.  S.  then  and  there 
well  knowing  the  said  note  to  be  false  and  fraudulent  as  afore- 
said, to  the  great  injury  and  deception  of  him  the  said  T.  C,  to 
452 


CHEATS.  (505) 

the  evil  example,  &c.,  and  contrary  to  the  form  of  the  statute, 
&c.(e)     [Conclude  as  in  book  1,  chapter  3.) 

(505)    Cheat  hy  means  of  a  counterfeit  letter. {f) 

That  J.  G.,  &c.,  on,  &c.,  at,  &c.,  a  certain  false  and  counter* 
feit  letter,  in  the  name  of  a  certain  T.  G.,  of  the  township  afore- 
said, farmer,  to  a  certain  B.  D.,  in  the  township  of  Plymouth,  in 
the  said  county,  merchant,  directed,  falsely  and  deceitfully  con- 
trived, made,  imagined,  and  devised,  the  tenor  of  which  said  false 
and  counterfeit  letter  follows  in  these  words,  to  wit:  — 

(e)  Com.  V.  Speer,  2  Va.  Cases,  65.  The  prisoner  was  convicted,  but,  before 
judgment  was  rendered,  the  court  below  adjourned  to  general  court  the  following 
questions :  1.  Is  tbe  falsely  passing  as  a  true  note  a  false  and  forged  note  pur- 
porting to  be  a  note  of  the  Bank  of  the  Ohio  Exporting  and  Importing  Company, 
and  purporting  to  be  signed  and  payable  as  in  the  indictment  is  set  forth,  and 
procuring  the  goods  and  other  property  in  the  indicfenent  mentioned  for  the 
said  false  and  forged  note,  when  no  such  bank  or  company  ever  existed,  either 
chartered  or  unchartered,  such  a  false  token  or  counterfeit  letter  as  comes 
within  the  true  intent  and  meaning  of  the  act  of  Assembly,  passed  November, 
1789,  and  if  so,  is  the  indictment  in  this  case  good  and  sufficient?  2.  If  this  is 
not  an  offence  within  the  act  of  assembly,  is  it  an  indictable  offence  at  common 
law,  and  if  so,  can  judgment  be  given  against  the  defendant  upon  this  indict- 
ment, that  he  be  imprisoned,  the  jury  not  having  assessed  a  fine? 

Per  Curiam:  "The  court  is  unanimously  of  opinion,  that  the  falsely  passing 
as  a  true  note  a  false  and  forged  note  purporting  to  be  a  note  on  the  Bank  of 
the  Ohio  Exporting  and  Importing  Company,  and  purporting  to  be  signed  and 
payable  as  in  the  indictment  is  set  forth,  and  procuring  the  goods  and  other 
property  in  the  indictment  mentioned  for  the  said  false  and  forged  note,  when  no 
such  bank  or  company  ever  existed,  either  chartered  or  unchartered,  is  not  such 
an  offence  as  can  be  prosecuted  under  the  act  entitled  '  An  act  against  those 
who  counterfeit  letters  or  privy  tokens,  to  receive  money  or  goods  in  other  men's 
names,'  passed  November  18th,  1789. 

"  And  the  court  is  further  unanimously  of  opinion,  that  the  offence  of  falsely 
procuring  the  goods,  &c.,  of  other  men  by  means  of  a  false  and  counterfeit  note, 
such  as  is  set  forth  in  the  indictment,  knowing  the  same  to  be  false  and  coun- 
terfeit, is  indictable  as  a  cheat  at  common  law ;  but  that  judgment  cannot  be 
rendered  against  the  defendant  in  this  case,  because  the  indictment  doth  not  ex- 
pressly aver  that  the  said  defendant  knew  that  the  said  note  was  a  false  and 
fraudulent  note." 

The  count  in  the  text  has  been  amended  by  the  insertion  of  the  scienter  re- 
quired by  the  court,  though,  even  as  thus  qualified,  it  is  questionable  whether  a 
more  full  averment  of  the  invalidity  of  the  notes  would  not  be  advisable. 

(/)  This  indictment  was  framed  in  1756,  by  Benjamin  Chew,  the  then  attor- 
ney-general of  Pennsylvania. 

453 


(506)  OFFENCES  AGAINST  PROPERTY. 

"  New  Providence,  December  25th,  1755.  Friend  B.  D.,  let 
the  bearer,  J.  G.,  have  half  a  gallon  of  rum ;  he  is  going  down 
the  road  a  little  way,  and  at  his  return  send  me  half  a  gallon 
home  by  him,  and  I  will  pay  you;  the  latter  end  of  next  week  I 
shall  go  to  town.  T.  G." 

And  afterwards,  to  wit,  the  day  and  year  aforesaid,  at  Plym- 
outh township  aforesaid,  in  the  county  aforesaid,  the  said  false 
and  counterfeit  letter  to  the  aforesaid  B.  D.  falsely  and  deceit- 
fully did  give  and  deliver,  by  color  and  means  of  which  said  false 
and  counterfeit  letter,  so  as  aforesaid  to  the  said  B.  D.  delivered, 
the  said  J.  G.,the  day  and  year  aforesaid,  at  Plymouth  township 
aforesaid,  in  his  hands  and  possession,  one  half  gallon  of  rum  of 
and  from  the  aforesaid  B.  D.  falsely,  unlawfully,  unjustly,  and 
deceitfully  did  acquire  and  obtain,  and  the  said  B.  D.  then  and 
there  of  the  aforesaid  one  half  gallon  of  rum  falsely,  unlawfully, 
unjustly,  and  deceitfully  did  deceive  and  defraud,  to  the  evil  and 
pernicious  example  of  all  others  in  such  case  delinquent,  and 
against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

II.  FALSE  PERSONATION  OF  BAIL. 

(606)    Under  11  Geo.  IV.  and  1  Wm.  IV.  c.  m,  s.  ll.(^) 

That  J.  S.,  late,  &c.,  on,  &c.,  at,  &c.,  before  the  right  honor- 
able Sir  J.  P.,  knight,  one  of  the  barons  of  Her  Majesty's  Court 
of  Exchequer,  at  Westminster  (the  said  Sir  J.  P.,  knight,  then 
and  there  having  lawful  authority  to  take  any  recognizance  of 
bail  in  any  suit  then  depending  in  the  said  court),  then  and  there 
feloniously  did  acknowledge  a  certain  recognizance  of  bail,  in 
the  name  of  J.  N.,  in  a  certain  cause  then  depending  in  the  said 
court,  wherein  A.  B.  was  plaintiff,  and  C.  D.  defendant,  he,  the 
said  J.  N.,  not  being  then  and  there  privy  or  consenting  to  the 
said  J.  S.  so  acknowledging  such  recognizance  in  his  name  as 
aforesaid,  against,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chapter  3.) 

m.   SECRETING   GOODS,   etc. 

(507)  Secreting,  &c.,  with  intent  to  defraud,  &c. 

(508)  Second  count.     Same,  with  intent  to  defraud  and  prevent 

such  property  from  being   made   liable  lor  payment  of 
debts. 

(g)  Arch.  C.  P.  7th  Am.  ed.  478. 
454 


SECRETING   GOODS,    ETC.  (507) 

(509)  Third  count.     Same,  not  specifying  property. 

(510)  Fourth  count.      Averring   intent  to  defraud   persons  un- 

known. 

(511)  Fifth   count.     Same,   not  specifying  goods,  with  intent  to 

defraud  persons  unknown. 

(512)  Sixth  count.      Same,  with  intent  to  prevent  property  from 

being  levied  on. 

(513)  Another  form  on  the  same   statute.      First  count,  intent  to   de- 

fraud, to  prevent  property  being  made  liable,  &c. 

(514)  Second  count.      Same,  with  intent  to  defraud  another  per- 

son. 

(515)  Third  count.      Secreting,   assigning,  &c.,  with   intent  to 

defraud  two,  &c. 

(516)  Fourth    count.      Secreting,    &c.,   averring  creditors  to  be 

judgment  creditors. 

(517)  Fifth  count.     Same,  in  another  shape. 

(518)  Fraudulent  conveyance  under  Stat.  Eliz.  ch.  5,  s.  3. 

(507)  Fb'st  count.     Secreting^  ^c,  with  intent  to  defraud^  ^c.(h) 

That  A.  K.,  &c.,  on,  &c.,  at,  &c.,  being  a  person  of  .an  evil  dis- 
position, ill  name  and  fame,  and  of  dishonest  conversation,  and 

(h)  The  2Gth  section  of  the  act  abolishing  imprisonment  for  debt  in  New 
York  (Laws  of  1831,  402),  and  the  20th  section  of  the  act  under  the  same  title 
in  Pennsylvania  (Pamph.  Laws,  1842,  339  ;  Purd.  585),  make  it  penal  in  a 
debtor  to  secrete  his  goods  with  intent  to  defraud  his  creditors.  The  precedent 
in  the  text  has  been  several  times  sustained  in  New  York,  though  it  has  not  yet 
received  a  final  adjudication  in  the  Pennsylvania  courts.  In  New  York,  the 
question  came  up  in  People  v.  Underwood  (16  Wend.  546).  In  that  case  excep- 
tion was  taken,  because  it  was  neither  averred  nor  proved  that  the  prosecuting 
creditors  were  judgment  creditors.  Bronson,  J.,  in  noticing  this  position,  said: 
"  The  26th  section  of  the  statute,  under  which  the  defendant  was  indicted,  de- 
clares that  '  any  person  who  shall  remove  any  of  his  property  out  of  any  county 
with  intent  to  prevent  the  same  from  being  levied  upon  by  any  execution,  or 
who  shall  secrete,  assign,  convey,  or  otherwise  dispose  of  any  of  his  property  with 
intent  to  defraud  any  creditor,  or  to  prevent  such  property  being  made  liable 
for  the  payment  of  his  debts,  and  any  person  who  shall  receive  such  property 
with  such  intent,  shall,  on  conviction,  be  deemed  guilty  of  a  misdemeanor.  The 
language  of  the  act  plainly  extends  to  all  creditors,  and  I  can  perceive  no  sufficient 
reason  for  restricting  its  construction  to  such  creditors  as  have  obtained  judg- 
ments for  their  demands.  The  fraudulent  removal,  assignment,  or  conveyance 
of  property  by  a  debtor,  which  the  legislature  intended  to  punish  ci-iminally, 
usually  takes  place  in  anticipation  of  a  judgment,  and  for  the  very  purpose  of 
defeating  the  creditor  of  the  fruits  of  his  recovery.  If  there  must  first  be  a  judg- 
ement before  the  crime  can  be  committed,  the  statute  will  be  of  very  little  public  im- 
portance.    This  is  not  like  the  case  of  a  creditor  seeking  a  cuil  remedy  against  a 

465 


(508)  OFFENCES  AGAINST  PROPERTY. 

unlawfully  devising  and  intending  to  defraud  A.  C.  E,.  and  H. 
B.,  merchants,  doing  business  in  the  City  of  New  York,  under 
the  name,  style,  and  firm  of  R.  and  B.,  said  firm  of  R.  and  B. 
being  creditors  of  him  the  said  A.  K.,  on,  &c.,  at,  &c.,  unlaw- 
fully did  secrete,  assign,  convey,  and  dispose  of  (A^)  the  personal 
property  of  him  the  said  A.  K.,  to  wit,  &c.  {staling  goods,  as  in 
larcenj/),  with  intent  to  defraud  the  said  firm  of  R,.  and  B.,  then 
and  there  being  creditors  of  him  the  said  A.  K.,  to  the  great 
damage  of  the  said  A.  C.  R.  and  H.  B.,  doing  business  as  afore- 
said under  the  name,  style,  and  firm  of  R.  and  B.,  against,  &c., 
and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(508)  Second  count.     Same,  with   intent   to  defraud   and  prevent 
such  property/  from  being  made  liable  for  payment  of  debts. 

That  the  said  A.  K.,  further  devising  and  intending  to  defraud 
the  said  A.  C.  R.  and  H.  B.,  doing  business  under  the  name, 
style,  and  firm  of  R.  and  B.,  so  being  creditors  as  aforesaid  of 
him  the  said  A.  K.,  afterwards,  to  wit,  on  the  day  and  year 
aforesaid,  with  force  and  arms,  at  the  ward,  city,  and  county 
aforesaid,  wickedly,  fraudulently,  and  unlawfully  did  secrete, 
assign,  convey,  and  dispose  of  certain  other  property  of  him  the 
said  A.  K.,  to  wit,  &c.,  with  intent  then  and  there  to  defraud  the 
said  A.  C.  R.  and  H.  B.,  doing  business  under  the  name,  style, 
and  firm  of  R.  and  B.  as  aforesaid,  and  then  and  there  being 

fraudulent  debtor.  There  the  creditor  must  complete  his  title  by  judgment  and 
execution,  before  he  can  control  the  debtor  in  the  disposition  of  his  property ; 
he  must  have  a  certain  claim  upon  the  goods  before  he  can  inquire  into  any  al- 
leged fraud  on  the  part  of  the  debtor.  Wiggins  v.  Armstrong,  2  Johns.  Ch.  144. 
But  this  is  a  public  prosecution,  in  which  the  creditor  has  no  special  interest. 
The  legislature  has  relieved  the  honest  debtor  from  imprisonment,  and  subjected 
the  fraudulent  one  to  punishment  as  for  a  criminal  offence.  The  crime  consists 
in  assigning  or  otherwise  disposing  of  his  property  with  intent  to  defraud  a  cred- 
itor, or  to  prevent  it  from  being  made  liable  for  the  payment  of  his  debts.  The 
public  offence  is  complete,  although  no  creditor  may  be  in  a  condition  to  question 
the  validity  of  the  transfer  in  the  form  of  a  civil  remedy.  I  think  the  jury  were 
properly  instructed  on  this  question,  and  that  the  exception  should  be  over- 
ruled."    See  Wh.  C.  L.  §  2165,  &c. 

As  to  the  extent  of  "  creditors  "  in  the  act,  see  Johnes  v.  Potter,  5  S.  &  R. 
519,  where  it  was  held  that  the  word  included  not  only  persons  whose  debts  are 
due  and  payable,  but  those  whose  debts  are  not  yet  due. 

(^1)   See  Wh.  C.  L.  §  390,  as  to  this  joinder. 
456 


SECRETING   GOODS,   ETC.  (511) 

creditors  of  him  the  said  A.  K.,  and  to  prevent  such  property 
being  made  liable  for  the  payment  of  the  debts  of  him  the  said 
A.  K.,  to  the  great  damage  of  the  said  A.  C.  R.  and  H.  B.,  against, 
&c.,  and  against,  &c.     (Conchtde  as  in  book  1,  chapter  3.) 

(509)   Third  count.     Same,  not  specifying  property. 

That  the  said  A.  K.,  on,  &c.,  at,  &c.,  fraudulently,  wickedly, 
and  unlawfully  did  secrete,  assign,  convey,  and  otherwise  dispose 
of  his  property,  with  intent  to  defraud  the  said  A.  C.  R.  and  H.  B., 
then  and  there  being  creditors  of  him  the  said  A.  K.,  and  then 
and  there  doing  business  under  the  name,  style,  and  firm  of  R. 
and  B.,  against,  &c.,  and  against,  &c.  ( Conclude  as  in  book  1, 
chapter  3.) 

(510)  Fourth  count.     Averring  intent  to  defraud  persons  unknown. 

That  the  said  A.  K.,  being  a  person  of  an  evil  disposition  {as 
in  the  first  count  mentioned).^  further  devising  and  intending  to 
defraud  divers  other  persons  to  the  jurors  aforesaid  unknown, 
creditors  of  him  the  said  A.  K.,  afterwards,  to  wit,  on  the  said 
fourth  day  of  April,  in  the  year  aforesaid,  with  force  and  arms, 
at  the  ward,  city,  and  county  aforesaid,  fraudulently,  wickedly, 
and  unlawfully  did  secrete,  assign,  convey,  and  otherwise  dis- 
pose of  [stating  goods),  of  the  property  of  him  the  said  A.  K., 
with  intent  then  and  there  to  defraud  divers  persons  to  the  jurors 
aforesaid  unknown,  then  and  there  being  creditors  of  him  the 
said  A.  K.,  against,  &c.,  and  against,  &c.  [Conclude  as  in  book 
1,  chapter  3.) 

(511)  Fifth  count.     Same,  not  specifying  goods,  with  intent  to  de- 

fraud persons  unknown. 

That  the  said  A.  K.,  afterwards,  on,  &c.,  at,  &c.,  wickedly, 
fraudulently,  and  unlawfully  did  secrete,  assign,  convey,  and 
otherwise  dispose  of  his  property,  with  intent  to  defraud  divers 
other  persons  to  the  jurors  aforesaid  unknown,  then  and  there 
being  creditors  of  him  the  said  A.  K.,  against,  &c.,  and  against, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

457 


(514)  OFFENCES    AGAINST    PROPERTY. 

(512)  Sixth  count     Same^  with  intent  to  prevent  property  from 

being  levied  on. 
That  the  said  A.  K.,  afterwards,  on,  &c.,  at,  &c.,  wickedly, 
fraudulently,  and  unlawfully  did  secrete,  assign,  convey,  and 
otherwise  dispose  of  his  property,  to  prevent  such  property  being 
made  liable  for  the  debts  of  him  the  said  A.  K.,  against,  &c.,  and 
against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(513)  Another  form  on  the  same  statute.     First  county  intent  to  de- 
fraud^ to  prevent  property  being  made  liable^  ^^-(0 

That  R.  B.,  &c.,  on,  &c.,  at,  &c.,  wickedly,  fraudulently,  and 
unlawfully  devising  and  intending  to  defraud  I.  C.  F.,  the  said 
I.  C.  F.  being  then  and  there  a  creditor  of  hitn  the  said  R,  in  a 
large  amount,  to  wit,  four  thousand  dollars,  of  his  just  debt  so  as 
aforesaid  due  from  him  the  said  R.  to  him  the  said  I.,  did  then  and 
there  fraudulently,  wickedly,  and  unlawfully  secrete  (g-oods,  as  in 
larceny),  being  then  and  there  the  property  of  the  said  R.,  with 
intent  to  defraud  the  said  I.,  being  as  aforesaid  a  creditor  of  the 
said  R.,  and  to  prevent  the  said  specified  goods  and  chattels  and 
property  of  the  said  R.  being  made  liable  for  the  payment  of  the 
debt  aforesaid,  so  as  aforesaid  due  from  him  the  said  R.  to  the 
said  I.,  to  the  great  damage  of  the  said  L,  contrary,  &c.,  and 
against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(514)  Second  count.     Same,  with  intent  to  defraud  another  person. 

That  the  said  R.  B.,  on,  &c.,  wickedly,  fraudulently,  and  un- 
lawfully devising  and  intending  to  defraud  J.  P.  B.,  the  said  J. 
P.  B.  being  then  and  there  a  creditor  of  him  the  said  R.  in  a 
large  amount,  to  wit,  four  thousand  dollars,  of  his  just  debt  so 
as  aforesaid  due  from  him  the  said  R.  to  him  the  said  J.  P.  B., 
did  then  and  there  fraudulently,  wickedly,  and  unlawfully  secrete 
two  hundred  pressing  plates,  two  screws,  twenty  shafts,  two 
hundred  wooden  frames,  one  horse,  one  wagon,  being  together 
of  the  value  of  two  thousand  dollars,  being  then  and  there  the 
property  of  the  said  R.,  with  intent  to  defraud  the  said  J.  P.  B., 
being  as  aforesaid  a  creditor  of  the  said  R.,  and  to  prevent  the 

(i)  This  indictment  was  drawn  in  1847,  by  Mr.  David  Webster,  then  assist- 
ant of  the  attorney-general  of  Pennsylvania,  but  was  never  tried. 

458 


SECRETING    GOODS,    ETC.  (516) 

said  specified  goods  and  chattels  and  property  of  the  said  R. 
being  made  liable  for  the  payn:ient  of  the  debt  as  aforesaid,  so  as 
aforesaid  due  from  him  the  said  R.  to  the  said  J.  P.  B.,  to  the 
great  damage  of  the  said  J.  P.  B.,  contrary,  &c.,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(515)  Third  count.     Secreting^  assigning^  ^e.,  with  intent  to  de- 

fraud two,  ^c. 

That  the  said  R.  B.,  on,  &c.,  at,  &c.,  wickedly,  fraudulently, 
and  unlawfully  devising  and  intending  to  defraud  I.  C.  F.  and  J. 
P.  B.,  the  said  F.  and  B.  being  then  and  there  creditors  of  him 
the  said  R.  in  large  amounts,  to  wit,  in  the  sum  of  eight  thou- 
sand dollars,  of  their  respective  just  debts,  so  as  aforesaid  due 
from  the  said  R.  to  them  the  said  F.  and  B.,  did  then  and  there 
wilfully,  wickedly,  unlawfully,  and  corruptly  secrete,  assign,  con- 
vey, and  dispose  of  the  property,  goods,  wares,  and  merchandises, 
and  moneys  of  him  the  said  R.,  of  great  value,  to  wit,  of  the 
value  of  ten  thousand  dollars,  the  character,  quality,  quantity, 
description,  and  denomination  of  which  said  goods,  property, 
wares,  and  merchandises,  and  moneys  are  to  the  inquest  un- 
known, with  intent  to  defraud  the  said  I.  C.  F.  and  J.  P.  B.,  so 
being  creditors  of  the  said  R.,  and  to  prevent  the  said  property, 
goods,  wares,  and  merchandises,  and  moneys  being  made  liable 
for  the  payment  of  the  debts  of  the  said  R.,  contrary,  &c.,  and 
against,  &c.     [Conclude  as  in  book  1,  chapter  3.) 

(516)  Fourth  count.     Secreting,  ^c,  averring  creditors  to  be  judg- 

ment creditors. 

That  on,  &c.,  J.  S.,  J.  L.,  and  L.  H.,  trading  as  S.,  L.,  and  H., 
were  creditors  of  the  said  R.  B.  by  judgment,  ,which  said  judg- 
ment was  entered  in  favor  of  them  the  said  J.  S.,  J.  L..  and  L. 
H.,  trading  as  aforesaid,  against  him  the  said  R.,  in  the  District 
Court  for  the  City  and  County  of  Philadelphia,  at  the  Septem- 
ber term  of  the  said  court,  in  the  year  one  thousand  eight  hun- 
dred and  forty-six,  being  numbered  two  hundred  and  fifty-seven 
of  the  said  term,  for  the  sum  of  seven  thousand  nine  hundred 
dollars,  and  was  founded  on  a  certain  bond  and  warrant  of  attor- 
ney thereto  annexed,  executed  by  the  said  R.  B.  in  favor  of  them 
the  said  J.  S.,  J.  L,,  and  L.  H.,  trading  as  S.,  L.,  and  H.,  dated 

459 


(517)  OFFENCES   AGAINST   PROPERTY. 

the  twenty-fourth  day  of  October,  one  thousand  eight  hundred 
and  forty-six,  in  the  penal  sum  of  seven  thousand  nine  hundred 
dollars,  conditioned  for  the  payment  of  the  just  sum  of  three 
thousand  nine  hundred  and  fifty  dollars  on  demand,  with  lawful 
interest,  which  said  judgment  still  remains  on  the  records  of  the 
said  courts  unpaid  and  unsatisfied ;  and  the  inquest,  &c.,  on 
their  oaths,  &c.,  do  further  present,  that  the  said  R.  B.,  on,  &c., 
at,  &c.,  wickedly,  fraudulently,  and  unlawfully  devising  and  in- 
tending to  defraud  the  said  J.  S.,  J.  L.,  and  L.  H,,  trading  as  S., 
L.,  and  H.,  the  said  J.  S.,  J.  L.,  and  L.  H.,  trading  as  S.,  L.,  and 
H.,  being  then  and  there  judgment  creditors  of  him  the  said  R. 
B.,  as  aforesaid  set  forth,  of  their  just  debt  and  judgment  so  as 
aforesaid  due  from  him  the  said  R.  to  them  the  said  S.,  L.,  and 
H.,  trading  as  aforesaid,  did  then  and  there  wilfully,  wickedly, 
unlawfully,  and  corruptly  secrete  the  goods  and  chattels  in  the 
aforesaid  first,  second,  and  third  counts  mentioned  and  referred 
to,  being  then  and  there  the  property  of  the  said  R.,  with  intent 
to  defraud  the  said  J.  S.,  J.  L.,  and  L.  H.,  trading  as  aforesaid, 
being  as  aforesaid  the  judgment  creditors  of  him  the  said  R.  B., 
and  to  prevent  the  said  goods  and  chattels  being  made  liable  for 
the  payment  of  the  aforesaid  debt  and  judgment  so  as  aforesaid 
due  from  the  said  R.  to  the  said  J.  S.,  J.  L.,  and  L.  H.,  trading 
as  aforesaid,  to  the  great  damage  of  the  said  J.  S.,  J.  L.,  and 
L.  H.,  trading  as  aforesaid,  contrary,  &c.,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(517)  Fifth  count.     Same  in  another  shape. 

That  the  said  R.  B.,  on,  &c.,  at,  &:c.,  wickedly,  fraudulently, 
and  unlawfully  devising  and  intending  to  defraud  J.  S.,  J.  L., 
and  L.  H.,  trading  as  S.,  L.,  and  H.,  the  said  S.,  L.,  and  H., 
trading  as  aforesaid,  being  then  and  there  judgment  creditors  of 
the  said  R.,  to  wit,  by  a  judgment  entered  in  the  District  Court 
for  the  said  city  and  county  wherein  they  the  said  J.  S.,  J.  L., 
and  L.  H.,  trading  as  aforesaid,  were  plaintiffs,  and  the  said  R. 
was  defendant,  which  said  judgment  was  for  a  large  sum  of 
money,  to  wit,  seven  thousand  nine  hundred  dollars,  and  is  num- 
ber two  hundred  and  fifty-seven  on  the  docket  of  the  September 
term  of  the  said  court  for  the  year  one  thousand  eight  hundred 
and  forty-six,  of  their  just  debt  and  judgment  so  as  aforesaid 
460 


SECRETING   GOODS,   ETC.  ('518) 

due  from  him  the  said  R.  to  them  the  said  S.,  L.,  and  11.,  did 
then  and  there  wilfully,  wickedly,  unlawfully,  and  corruptly  se- 
crete, assign,  convey,  and  dispose  of  the  property,  goods,  wares, 
and  merchandises,  and  moneys  of  him  the  said  R.,  of  great  value, 
to  wit,  of  the  value  of  ten  thousand  dollars,  the  character,  qual- 
ity, quantity,  description,  and  denomination  of  which  said  goods, 
property,  wares,  and  merchandises,  and  moneys  are  to  the  inquest 
unknown,  with  intent  to  defraud  the  said  J.  S.,  J.  L.,  and  L.  H., 
trading  as  aforesaid,  so  being  judgment  creditors  of  him  the  said 
R.,  and  to  prevent  the  said  property,  goods,  wares,  and  merchan- 
dise, and  wares  and  moneys  being  made  liable  for  the  payment 
of  the  debts  of  the  said  R.,  and  of  the  aforesaid  judgment,  con- 
trary, &c.,  and  against,  &c.     ( Conclude  as  in  book  1,  chajder  3.) 

(518)  Fraudulent  conveyance  under  Stat.  Eliz.  ch.  5,  s.  3.  (a) 

That  heretofore,  and  before,  &c.,  of  the  offence  hereinafter  next 
mentioned,  to  wit,  on  the  first  day  of  January,  in  the  year  of  our 
Lord  1850,  and  on  divers  other  days  and  times  heretofore,  Wil- 
liam Smith,  hereinafter  mentioned,  had  committed  and  caused  to 
be  committed  near  to  and  in  the  neighborhood  of  certain,  to  wit, 
twenty-two,  messuages,  of  and  belonging  to  one  T.  C.  M.,  to  wit, 
at  West  Hill  Grove,  in  the  parish  of  Battersea,  in  the  County  of 
Surrey,  divers  nuisances  and  injurious  acts,  matters,  and  things, 
to  the  great  damage  and  injury  of  the  said  T.  C.  M.,  to  wit,  to 
the  amount  of  <£300  and  upwards.  Wherefore  the  said  T.  C.  M. 
heretofore,  to  wit,  on  the  twenty-seventh  day  of  January,  in  the 
year  of  our  Lord  1851,  did  commence  a  certain  action  on  the 
case  against  the  said  W.  S.,  to  wit,  in  the  court  of  our  lady  the 
queen,  before  the  queen  herself,  whereby  to  recover  from  the  said 
W.  S.  the  lawful  damages  sustained  by  the  said  T.  C.  M.  for 
and  in  respect  of  the  said  nuisances  and  injurious  acts,  matters, 
and  things  aforesaid. 

(o)  This  indictment  was  sustained  in  R.  v.  Smith,  6  Cox  C.  C.  31.  It  has 
been  thought  right,  says  Mr.  Cox,  to  set  out  this  indictment  at  some  length,  as 
it  is  the  only  form  of  the  kind  to  be  found  in  the  books.  It  was  drawn,  after 
much  consideration,  by  the  deputy  clerk  of  assize  on  the  home  circuit,  and  is 
believed  to  be  the  only  instance  in  which  an  attempt  has  been  made  to  render 
this  section  the  basis  of  a  criminal  prosecution,  —  a  fact  somewhat  remarkable, 
considering  the  extensive  nature  of  its  operation.  The  facts  of  the  case  are 
sufficiently  shown  by  the  indictment  itself. 

461 


OFFENCES  AGAINST  PROPERTY. 

That  thereupon  such  proceedings  were  had  and  taken  in  the 
said  action,  that  afterwards,  to  wit,  at  the  assizes  holden  at 
Kingston-oii-Thames,  in  and  for  the  County  of  Surrey  aforesaid, 
the  said  action  came  on  to  be  tried,  and  then  and  there,  before 
the  Right  Honorable  John  Lord  Campbell,  and  the  Right  Hon- 
orable Sir  James  Parke,  knight,  then  and  there  being  her  maj- 
esty's justices  assigned  to  take  the  assizes  in  and  for  the  said 
county,  was  by  a  certain  jury  of  the  country  in  due  form  of  law 
tried,  upon  which  said  trial  the  said  jury  did  find  and  say  upon 
their  oatlis,  that  the  said  W.  S.  was  guilty  of  the  grievances, 
nuisances,  and  injurious  acts,  matters,  and  things  aforesaid  ;  and 
assessed  the  damages  of  the  said  T.  C.  M.  on  occasion  thereof, 
over  and  above  his  costs  and  charges  by  him  about  his  said  suit 
in  that  behalf  expended,  to  X300,  and  assessed  those  costs  and 
charges  at  forty  shillings. 

That  during  the  pendency  of  the  said  suit,  to  wit,  from  the 
commencement  of  the  said  suit  until  the  twenty-eighth  day  of 
March,  in  the  year  of  our  Lord  1851,  the  said  W.  S.  was  seised 
in  his  demesne  as  of  fee  of  and  in  certain  lands^  hereditaments, 
and  premises  within  the  said  county,  to  wit,  at  the  parish  of 
Battersea,  in  the  County  of  Surrey.* 

That  the  said  W.  S.,  late  of  the  parish  of  Wandsworth,  in  the 
county  aforesaid,  laborer,  and  S.  Everett,  late  of  the  same  place, 
laborer,  devif^ing  and  wickedly  intending  and  contriving  to  injure, 
prejudice,  and  aggrieve  the  said  T.  C.  M.,  and  to  defraud  and 
deprive  him  of  any  damages  and  costs  to  be  recovered  in  the  said 
action  whilst  the  same  was  so  pending  as  aforesaid,  and  imme- 
diately before  the  same  came  on  for  trial  as  aforesaid,  atid  in 
anticipation  of  the  said  verdict,  to  wit,  on  the  day  and  year  last 
aforesaid,  at  the  parish  last  aforesaid,  in  the  county  aforesaid,  did 
devise,  contrive,  and  prepare,  and  caused  to  be  prepared,  a  cer- 
tain feigned,  covinous,  and  fraudulent  alienation  and  conveyance, 
whereby  the  said  W.  S.  expressed  and  declared  to  appoint  and 
grant  to  the  said  S.  E.  the  lands,  tenements,  and  hereditaments 
aforesaid,  to  hold  to  him  the  said  S.  E.  and  his  heirs  forever. 

That  the  said  W.  S.  and  S.  E.,  wickedly  and  fraudulently  de- 
vising, contriving,  and  intending  as  aforesaid,  on  the  day  and 
year  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
unlawfully,  knowingly,  wilfully,  fraudulently,  covinously,  and  in- 
462 


SECRETING    GOODS,    ETC.  (518) 

juriously  did  execute  and  become  parties  to  the  said  alienation 
and  conveyance,  and  then  and  there  wittingly  and  wilfully  did 
put  in  ure,  avow,  maintain,  justify,  and  defend  the  same  aliena- 
tion and  conveyance,  as  true,  simple,  and  done  and  made  bond 
fide  and  upon  good  consideration,  and  as  a  conveyance  and 
alienation  whereby  the  said  W.  S.  had  really  and  bond  fide  ap- 
pointed and  granted  to  the  said  S.  E.  the  lands,  tenements,  and 
hereditaments  aforesaid,  to  hold  to  him  the  said  S.  E.  and  his 
heirs  forever.  Whereas,  in  truth  and  in  fact,  the  said  alienation 
and  conveyance  was  not  nor  is  it  bond  fide.  And  whereas  the 
truth  was  and  is,  that  the  same  was  so  devised,  contrived,  and 
executed  as  aforesaid,  of  malice,  fraud,  collusion,  and  guile,  and 
to  the  end,  purpose,  and  intent  to  delay  and  hinder  the  said  T.  C. 
M.  of  and  in  his  said  just  and  lawful  action  and  the  said  dam- 
ages by  reason  of  the  premises ;  to  the  great  let  and  hinderance 
of  the  due  course  and  execution  of  law  and  justice,  to  the  great 
injury  of  the  said  T.  C.  M.,  against  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  of  our  said 
lady  the  queen,  her  crown  and  dignity. 

Second  county  as  in  the  first  count  to  the  asterisk,  and  continued 

thus : 

That  the  said  W.  S.  and  S.  E.,  devising  and  wickedly  intend- 
ing and  contriving  to  injure,  prejudice,  and  aggrieve  the  said  T. 
C.  M.,  and  to  defraud  and  deprive  him  of  any  damages  and  costs 
to  be  recovered  in  the  said  action  whilst  the  same  was  so  pend- 
ing as  aforesaid,  and  immediately  before  the  same  came  on  for 
trial  as  aforesaid,  and  in  anticipation  of  the  said  verdict,  to  wit, 
on  the  day  and  year  last  aforesaid,  at  the  parish  of  Wandsworth, 
in  the  county  aforesaid,  did  devise,  contrive,  and  prepare,  and 
cause  to  be  prepared,  a  fraudulent  alienation  and  conveyance  of 
the  lands,  tenements,  and  hereditaments  aforesaid.  That  the  said 
W.  S.  and  S.  E.  wickedly  and  fraudulently  devising,  contriving, 
and  intending  as  aforesaid,  on  ^he  day  and  year  aforesaid,  at  the 
parish  last  aforesaid,  in  the  county  aforesaid,  unlawfully,  know- 
ingly, wilfully,  fraudulently,  covinously,  and  injuriously  did  exe- 
cute and  become  parties  to  the  said  alienation  and  conveyance, 
and  then  and  there  wittingly  and  willingly  did  put  in  ure,  avow, 
maintain,  justify,  and  defend  the  same  alienation  and  convey- 

463 


(518)  OFFENCES  AGAINST  PROPERTY. 

ance,  as  true,  simple,  and  done  and  made  bond  fide  and  upon 
good  consideration,  and  as  a  conveyance  and  alienation,  whereby 
the  said  W.  S.  had  really  and  bond  fide  aliened  and  conveyed  to 
the  said  S.  E.  the  lands,  tenements,  and  hereditaments  aforesaid, 
to  hold  to  him  the  said  S.  E.  and  his  heirs  forever;  whereas,  in 
truth,  &c.  {as  in  first  count). 

TJdrd  county  as  in  the  first  count,  to  the  asterisk : 

That  during  the  pendency  of  said  action,  and  in  anticipation 
of  the  said  verdict,  to  wit,  on  the  day  and  year  last  aforesaid,  a 
certain  feigned,  covinous,  and  fraudulent  alienation  and  convey- 
ance had  been  devised,  contrived,  prepared,  and  executed,  by  and 
between  the  said  W.  S.  and  the  said  S.  E.,  whereby  the  said  W. 
S.  was  expressed  and  declared  to  appoint  and  grant  and  make 
over  to  the  said  S.  E.,  the  lands,  tenements,  and  hereditaments 
aforesaid,  to  the  said  S.  E.  and  his  heirs  forever.  That  the  said 
W.  S.  and  S.  E.  wickedly  devising,  contriving,  and  intending  to 
injure,  prejudice,  and  aggrieve  him,  and  to  deprive  him  of  the 
said  damages  and  costs  in  the  said  action  so  found  as  aforesaid, 
afterwards,  to  wit,  on  the  twenty-sixth  day  of  April,  in  the  year 
of  our  Lord  1851,  at  the  parish  of  Wandsworth,  in  the  county 
aforesaid,  unlawfully,  wittingly,  and  willingly  did  put  in  ure, 
avow,  maintain,  justify,  and  defend  the  same  alienation  and  con- 
veyance, as  true,  simple,  and  done  and  made  bond  fide  and  upon 
good  consideration,  and  as  a  conveyance  and  alienation,  whereby 
the  said  W.  S.  had  really  and  bond  fide  appointed,  granted,  and 
made  over  to  the  said  S.  E.  the  lands,  tenements,  and  heredita- 
ments aforesaid,  to  hold  to  him  the  said  S.  E.  and  his  heirs  for- 
ever; whereas,  in  truth  and  in  fact,  &c. 

Fourth  count,  as  iii  the  first  count,  to  the  asterisk : 

That  during  the  pending  of  the  said  action,  and  in  anticipa- 
tion of  the  said  verdict,  to  wit,  on  the  day  and  year  last  aforesaid, 
a  certain  feigned,  covinous,  and  fraudulent  alienation  and  con- 
veyance had  been  devised,  contrived,  prepared,  and  executed  by 
and  between  the  said  W.  S.  and  the  said  S.  E.,  of  the  lands, 
tenements,  and  hereditaments  aforesaid,  to  the  said  S.  E.  and  his 
heirs  forever.  That  the  said  W.  S.  and  S.  E.,  wickedly  devising, 
contriving,  and  intending  to  injure,  prejudice,  and  aggrieve  the 
464 


SECRETING    GOODS,    ETC.  (518) 

said  T.  C.  M.,  and  defraud  and  deprive  him  of  the  said  damages 
and  costs  in  the  said  action  so  found  as  aforesaid,  afterwards,  to 
wit,  on  the  twenty-sixth  day  of  April,  in  the  year  of  our  Lord 
1851,  at  the  parish  of  Wandsworth  aforesaid,  in  the  county  afore- 
said, unlawfully,  wittingly,  and  willingly  did  put  in  ure,  avow, 
maintain,  justify,  and  defend  the  same  alienation  and  convey- 
ance, as  true,  simple,  and  done  and  made  bond  fide  and  upon 
good  consideration,  and  as  a  conveyance  and  alienation  whereby 
the  said  W.  S.  had  really  and  bond  fide  granted,  bargained, 
aliened,  released,  conveyed,  and  made  over  to  the  said  S.  E.  the 
lands,  tenements,  and  hereditaments  aforesaid,  to  hold  to  him 
the  said  S.  E.  and  his  heirs  forever,  &c. 

Fifth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  W.  S.  and  the  said  S.  E.,  and  divers  evil 
disposed  persons,  wickedly  intending  to  injure  the  said  T.  C.  M., 
on  the  twenty-eighth  day  of  March,  in  the  year  of  our  Lord  1851, 
with  force  and  arms,  at  the  parish  of  Wandsworth,  in  the  county 
aforesaid,  did  amongst  themselves  conspire,  combine,  confederate, 
and  agree  together,  fraudulently,  maliciously,  and  covinously  to 
delay,  hinder,  and  defraud  the  said  T.  C.  M.  of  all  such  dam- 
ages which  he  might  thereafter  recover  against  the  said  W.  S.  in 
a  certain  action  which  was  then  pending  in  the  court  of  our  said 
lady  the  queen,  before  the  queen  herself,  wherein  the  said  T.  C. 
M.  was  plaintiff,  and  the  said  W.  S.  was  defendant,  to  the  evil 
example  of  all  others  in  the  like  case  offending,  against  the  peace 
of  our  said  lady  the  queen,  her  crown,  and  dignity. 

Sixth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  W.  S.  and  the  said  S.  E.,  and  divers  evil 
disposed  persons,  wickedly  intending  to  injure  the  said  T.  C.  M., 
on  the  twenty-eighth  day  of  March,  in  the  year  of  our  Lord 
1851,  with  force  and  arms,  at  the  parish  of  Wandsworth,  in  the 
county  aforesaid,  did  amongst  themselves  conspire,  combine,  con- 
federate, and  agree  together,  fraudulently,  maliciously,  and  covin- 
ously to  delay,  hinder,  and  defraud  the  creditors  of  the  said  W. 

VOL.  I. —30  4g^ 


(518)  OFFENCES  AGAINST  PROPERTY. 

S.,  to  the  evil  example  of  all  others  in  the  like  case  offending, 
against  the  peace  of  our  lady  the  queen,  her  crown  and  dignity. 

Seventh  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  W.  S.  and  the  said  S.  E.,  and  divers  evil 
disposed  persons,  wickedly  intending  to  injure  the  said  T.  C.  M., 
on  the  twenty-eighth  day  of  March,  in  the  year  of  our  Lord 
1851,  with  force  and  arms,  at  the  parish  of  Wandsworth,  in  the 
county  aforesaid,  did  amongst  themselves  conspire,  combine,  con- 
federate, and  agree  together,  fraudulently,  maliciously,  and  covin- 
ously  to  cheat  and  defraud  the  said  T.  C.  M.  of  the  fruits  and 
of  all  benefits  and  advantages  of  any  execution  or  executions 
which  he  might  thereafter  lawfully  issue  or  cause  to  be  issued 
against  the  lands  or  tenements  of  the  said  W.  S.,  to  the  evil 
example  of  all  others  in  the  like  case  offending,  against  the  peace 
of  our  lady  the  queen,  her  crown  and  dignity. 

Eighth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  W.  S.  and  the  said  S.  E.,  and  divers  evil 
disposed  persons,  wickedly  intending  to  injure  the  said  T.  C.  M., 
on  the  twenty-eighth  day  of  March,  in  the  year  of  our  Lord 
1851,  with  force  and  arms,  at  the  parish  of  Wandsworth,  in  the 
county  aforesaid,  did  amongst  themselves  conspire,  combine,  con- 
federate, and  agree  together,  fraudulently,  maliciously,  and  covin- 
ously  to  cheat,  injure,  impoverish,  prejudice,  and  defraud  the  said 
T.  C.  M.,  to  the  evil  example  of  all  others  in  the  like  case  offend- 
ing, &c. 

Ninth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  heretofore,  arid  before  and  at  the  time  of  the  com- 
mission of  the  offence  hereinafter  next  mentioned,  to  wit,  on  the 
twenty-eighth  day  of  March,  in  the  year  of  our  Lord  1851,  a 
certain  action  on  the  case  was  pending  between  the  said  W.  S. 
and  the  said  T.  C.  M.,  to  wit,  in  her  majesty's  Court  of  Queen's 
Bench,  at  Westminster,  whereby  the  said  T.  C.  M.  sought  to 
recover  from  the  said  W.  S.  damages  for  certain  nuisances  and 
injurious  acts,  matters,  and  things  alleged  to  have  been  done  and 
466 


SECRETING    GOODS,    ETC.  (518) 

committed,  to  the  injury  of  the  said  T.  C.  M.  That  the  said 
W.  S.  and  S.  E.,  and  divers  evil  disposed  persons,  whilst  the 
said  action  was  so  pending  as  aforesaid,  to  wit,  on  the  day  and 
year  aforesaid,  at  the  parish  last  aforesaid,  in  the  county  afore- 
said, unlawfully  and  wickedly  did  conspire,  combine,  confederate, 
and  agree  together,  by  divers  unlawful,  false,  fraudulent,  and  in- 
direct ways,  means,  devices,  stratagems,  and  contrivances,  to 
impede,  hinder,  prevent,  and  delay  the  said  T.  C.  M.  in  the  said 
action,  and  in  the  prosecution  thereof,  and  in  the  recovery  of 
damages  for  the  nuisances  and  injurious  acts,  matters,  and  things 
aforesaid,  to  the  great  injury  of  the  said  T.  C.  M.,  against  the 
form  of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  of  our  said  lady  the  queen,  her  crown  and  dignity.(a) 

(fl)  Afler  conviction,  Locke  (for  the  defence)  moved  in  arrest  of  judgment, 
on  the  ground  that  no  proceeding  by  indictment  was  contemplated  by  the  stat- 
'  ute.  The  third  section  was  in  these  words  :  "  That  all  and  every  the  parties 
to  such  feigned,  covinous,  or  fraudulent  feoffment,  gift,  grant,  alienation,  bar- 
gain, conveyance,  bonds,  suits,  judgments,  executions,  and  other  things  before 
expressed,  and  being  privy  and  knowing  of  the  same,  or  any  of  them,  which,  at 
any  time  after  the  tenth  day  of  June,  next  coming,  shall  wittingly  and  willingly 
put  in  ure,  avow,  maintain,  justify,  or  defend  the  same,  or  any  of  them,  as  true, 
simple,  and  done,  had,  or  made  bonajide,  and  upon  good  consideration,  or  shall 
aliene  or  assign  any  the  lands,  tenements,  goods,  leases,  or  other  things  before  men- 
tioned, to  him  or  them  conveyed  as  is  aforesaid,  or  any  part  thereof,  shall  incur 
the  penalty  or  forfeiture  of  one  year's  value  of  the  said  lands,  tenements,  and 
hereditaments,  leases,  rents,  commons,  or  other  profits,  of  or  out  of  the  same, 
and  the  whole  value  of  the  said  goods  and  chattels,  and  also  of  so  much  moneys 
as  are  or  shall  be  contained  in  any  such  covinous  or  feigned  bond ;  the  one 
moiety  whereof  to  be  to  the  queen's  majesty,  her  heirs,  and  successors,  and  the 
other  moiety  to  the  party  or  parties  aggrieved  by  such  feigned  and  fraudulent 
feoffment,  gift,  grant,  alienation,  bargain,  conveyance,  bonds,  suits,  judgments, 
executions,  leases,  rents,  commons,  profits,  charges,  and  other  things  aforesaid, 
to  be  recovered  in  any  of  the  queen's  courts  of  record,  by  action  of  debt,  bill, 
plaint,  or  information,  wherein  no  essoign,  protection,  or  wager  of  law  shall  be 
admitted  to  the  defendant  or  defendants,  and  also,  being  thereof  lawfully  con- 
victed, shall  suffer  imprisonment  for  one  half  year,  without  bail  or  mainprize." 
The  offence,  if  any,  of  which  the  defendants  have  been  guilty,  is  entirely  cre- 
ated by  this  statute,  and  the  section,  after  stating  what  the  offence  is,  declares 
that  for  committing  it  the  offender  shall  incur  a  penalty  or  forfeiture  of  one 
year's  value,  to  be  recovered  by  action.  There  is  no  mention  whatever  of  in- 
dictment, but  there  is  a  reference  to  a  civil  proceeding.  The  rule  with  respect 
to  the  mode  of  proceeding  where  new  offences  are  created  by  statute  is  laid 
down  in  Russell  on  Crimes,  p.  50,  in  the  following  terms :  "  Where  an  offence 

467 


(519)  OFFENCES  AGAINST   PROPERTY. 


IV.  FRAUDULENT  INSOLVENCY  IN  PENNSYLVANIA. 

(519)  General  form. 

(520J  Averring  collusion  with  another  person. 

(521)  Same,  but  averring  collusion  with  another  person. 

(522)  Same,  specifying  another  assignee. 

(523^  Fraudulent  insolvency  by  a  tax  collector.     First  count.     Embez- 
zling creditor's  property. 
(524)  Second  count.     Applying  to  his  own  use  trust  money,  &c. 

(519)    Crenet'al  form. 

That  T.  W.  D.,  &c.,  on,  &c.,  at,  &e.,  made  and  presented  to 
the  Honorable  the  Judges  of  the  Court  of  Common  Pleas  of  the 
was  punishable  by  a  common  law  proceeding  before  the  passing  of  a  statute 
which  prescribes  a  particular  remedy  by  a  summary  proceeding,  then  either 
method  may  be  pursued,  as  the  particular  remedy  is  cumulative,  and  does  not 
exclude  the  common  law  punishment.  But  where  a  statute  creates  a  new 
offence  by  prohibiting  and  making  unlawful  what  was  lawful  before,  and  ap- 
points a  particular  remedy  against  such  new  offence,  by  a  particular  sanction  and 
particular  method  of  proceeding,  such  method  must  be  pursued,  and  no  other. 
The  mention  of  other  methods  of  proceeding  impliedly  excludes  that  by  indict- 
ment, unless  such  methods  are  given  by  a  separate  and  substantive  clause." 
There  is  another  objection  to  this  indictment,  that  it  only  states  generally 
that  this  deed  was  fraudulent,  not  stating  why  or  in  what  respect  it  was  so. 
In  re  Peck,  9  Adolphus  &  Ellis,  686,  it  was  held,  that  a  count  charging  that 
the  defendants  unlawfully  conspired  to  defraud  divers  persons  who  should  bar- 
gain with  them  for  the  sale  of  merchandise,  of  great  quantities  of  such  mer- 
chandise, without  paying  for  the  same,  with  intent  to  obtain  to  themselves 
money  and  other  profit,  was  bad  for  not  showing  by  what  means  the  parties 
were  to  be  defrauded.  • 

James  (with  whom  was  Hawkins),  for  the  prosecution,  was  not  called  upon. 

Maule  J.  "  As  to  the  first  point,  that  the  section  of  the  act  of  Parliament  does 
not  speak  of  indictment,  I  think  it  clear  that  that  proceeding  is  the  proper  one. 
The  section  mentions  the  offence,  and  then,  with  reference  to  the  punishment, 
declares  that  the  *  offender  being  thereof  convicted,  shall  suffer  imprisonment 
for  one  half  year.'  That  must  mean,  'being  convicted  thereof  before  some 
competent  tribunal.  If  the  statute  had  pointed  out  some  other  means  —  for  in- 
stance, on  conviction  before  a  justice  of  the  peace,  on  a  summary  hearing  —  it 
would  probably  have  restricted  proceedings  to  that  particular  course.  It  is  true 
that  the  statute  does  mention  a  civil  action,  but  that  has  nothing  whatever  to 
do  with  the  half  year's  imprisonment,  but  merely  has  reference  to  the  recovery 
of  damages  by  action,  in  any  of  the  courts  at  Westminster.  It  surely  could 
never  be  contended  that  the  meaning  of  the  statute  is,  that  when  such  a  cqurt 
has  given  judgment  for  the  damages,  it  should  proceed  to  award  to  the  defend- 
ant the  punishment  of  imprisonment  for  half  a  year.  The  humanity  of  our  law 
468 


FRAUDULENT   INSOLVENCY,    ETC.  (^19) 

County  of  Philadelphia,  his  petition  in  writing  praying  for  the 
benefit  of  the  insolvent  laws  of  this  commonwealth,  according  to 
the  form,  force,  and  efl'ect  of  the  said  insolvent  laws,*  and  the 
said  T.  W.  D.  so  petitioning  as  aforesaid,  and  being  then  and 
there  indebted  to  a  certain  B.  L.,  of  the  said  county,  yeoman, 
and  also  to  divers  others,  whose  names  are  to  the  jurors  aforesaid 
unknown,  in  divers  large  sums  of  money,  the  said  court  on  the 
said  petition,  so  presented  as  aforesaid,  did  then  and  there  ap- 
point the  eleventh  day  of  January,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  thirty-nine,  for  the  purpose  of  hear- 
ing the  said  T.  W.  D.  and  his  creditors,  at  the  County  Court- 
house in  the  City  of  Philadelphia,  on  which  said  last  mentioned 
day,  and  at  the  court-house  aforesaid,  and  on  the  several  days 
and  times  thereafter  to  which  the  said  case  was  duly  adjourned, 
to  wit,  at  the  county  aforesaid,  the  said  court  did  meet  and  sit, 
for  the  purpose  aforesaid  [and  it  appearing  to  the  said  court  on 
the  said  hearings  that  there  was  just  ground  to  believe  that  the 
said  T.  W.  D.  had  concealed  part  of  his  estate  and  effects,  and 
colluded  and  contrived  with  divers  persons  for  such  concealment, 
and  conveyed  the  same  to  divers  persons  for  the  use  of  himself 
and  his  family  and  friends,  with  the  expectation  of  receiving 
some  future  benefit  to  himself  and  them,  with  intent  to  defraud 
his  creditors,  the  said  court  on  the  said  {stating  ti7ne)  did  commit 

has  established  a  clear  distinction  between  civil  and  criminal  proceedings,  and 
this  act  of  Parliament  cannot  be  supposed  to  sanction  so  anomalous  a  course  as 
that.  It  is  obvious  that,  by  some  means  or  another,  imprisonment  is  to  be 
awarded  after  a  proper  conviction  before  a  recognized  tribunal.  How,  then, 
can  that  be  done  otherwise  than  by  indictment  ?  " 

Locke  submitted,  that,  at  all  events,  it  was  intended  that  no  criminal  proceed- 
ing should  bo  resorted  to  until  after  the  recovery  of  damages  in  a  civil  action, 
the  words  "  and  also,"  near  the  end  of  the  section,  seemed  to  point  to  such  a 
construction. 

Maule  J.  "I  do  not  think  so  ;  those  words  do  not  necessarily  so  restrict  the 
procedure,  and  there  seems  to  be  no  reason  why  it  should  be  so  restricted.  Then, 
as  to  the  second  point,  the  case  cited  is  one  where  persons  were  said  to  have 
conspired  to  do  a  thing  not  necessarily  unlawful  in  itself —  such  as,  for  instance, 
preventing  a  person  from  having  execution  of  a  judgment.  There  is  nothing 
unlawful  in  that.  It  is  precisely  what  the  learned  counsel,  and  those  who  in- 
struct him,  are  doing  at  this  moment,  seeking  to  prevent  the  operation  of  a 
judgment  by  arresting  it.  In  the  present  case,  the  very  words  of  the  statute 
are  adopted.  What  is  charged,  therefore,  is  necessarily  unlawful,  for  the  statute 
has  made  it  so."    Judgment  for  the  crown. 

469 


(520)  OFFENCES   AGAINST   PROPERTY. 

the  said  T.  W.  D.  to  the  jail  of  the  said  county,  for  trial  at  this 
court.]  And  the  inquest  aforesaid  do  further  present,  that  the 
said  T.  W.  D.,  fraudulently  and  wickedly  contriving  and  intend- 
ing to  cheat  and  defraud  the  said  B.  L.  and  othert.;,  his  creditors 
as  aforesaid,  to  wit,  on  the  day  and  year  first  aforesaid,  at  the 
city  and  county  aforesaid,  did  collude  and  contrive  with  a  certain 
J.  B.  D.  and  a  certain  C.  W.  D.  for  the  concealment  of  a  part  of 
his  the  said  T.  W.  D.'s  estate  and  effects,  to  wit,  merchandise, 
consisting  of  groceries,!  viz.,  one  hundred  chests  of  tea ;  dry 
goods,  viz.,  five  thousand  yards  of  domestic  goods  ;  hardware, 
and  other  articles  to  the  jurors  aforesaid  unknown,  of  great  value, 
to  wit,  of  the  value  of  one  hundred  thousand  dollars,  thereby 
expecting  a  future  benefit  to  himself,  with  intent  to  defraud  the 
said  B.  L.  and  others,  his  creditors,  to  the  evil  example  of  all 
others  in  like  cases  offending,  contrary,  &c.,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

Second  count.     Same  as  first  down  to  *,  and  then  proceed : 

And  the  said  T.  W.  D.  was  then  and  there  indebted  to  B.  L., 
J.  R.,  and  D.  M.,  of  the  said  city  and  county,  yeomen,  and  also 
to  divers  others,  whose  names  are  to  the  jurors  aforesaid  un- 
known, in  divers  large  sums  of  money,  and  that  the  said  T.  W. 
D.,  so  petitioning  as  aforesaid  (with  the  result  aforesaid),  did, 
with  intent  to  defraud  his  creditors  aforesaid,  convey  to  a  certain 
J.  B.  D.  and  C.  W.  D.,  for  the  use  of  himself,  the  said  T.  W.  D., 
thereby  expecting  a  future  benefit  to  himself,  part  of  his  estate 
and  effects,  to  wit,  merchandise,  consisting  of  groceries,  &c. 
{^Conclude  as  injirst  count  from  f.) 

I 
(520)   Third  count.     Same  as  first,  but  averring  collusion  with  an- 
other person. 

Fourth  count. 

That  the  said  T.  W.  D.,  on,  &c.,  at,  &c.,  made  and  presented 
to  the  Honorable  the  Judges  of  the  Court  of  Common  Pleas  of 
the  County  of  Philadelphia  his  petition  in  writing,  praying  for 
the  benefit  of  the  insolvent  laws  of  the  Commonwealth  of  Penn- 
sylvania, and  that  the  same  T.  W.  D.,  so  petitioning  as  aforesaid 
(with  the  result  aforesaid),  on  the  day  and  year  first  aforesaid, 
470 


FRAUDULENT    INSOLVENCY,    ETC.  (523) 

at  the  city  and  county  aforesaid,  did  fraudulently  *  convey  to  a 
certain  T.  W.  D.,  Jr.,  jjart  of  the  estate,  effects,  and  credits  of 
said  T.  W.  D.,  to  wit,  merchandise,  consisting  of  groceries,  viz., 
one  hundred  chests  of  tea;  dry  goods,  viz.,  five  thousand  yards 
of  cotton  goods;  hardware,  and  other  articles  to  the  jurors  afore- 
said unknown,  of  great  value,  to  wit,  of  the  value  of  twenty 
thousand  dollars,  with  the  expectation  of  receiving  future  benefit 
to  himself,  and  with  intent  to  defraud  his  creditors  and  for  the 
use  of  himself,  to  the  evil  example,  &c. 

(521)  Fifth  and  sixth  counts.     Same  as  first.,  hut  averring  collusion 

with  another  person- 

(522)  Seventh  count.     Same  as  second,  hut  specifying  another  as- 

signee. 

Eighth  count.     Sime  as  fourth  to  *,  and  then  p-oceed : 

conceal  part  of  his  estate,  effects,  and  credits,  to  wit,  merchan- 
dise, consisting  of  groceries,  one  hundred  chests  of  tea  ;  dry 
goods,  viz.,  five  thousand  yards  of  cotton  domestic  goods  ;  and 
other  articles  to  the  jurors  aforesaid  unknown,  of  great  value,  to 
wit,  of  the  value  of  fifty  thousand  dollars,  with  the  expectation 
of  receiving  future  benefit  to  himself,  and  with  intent  to  defraud 
his  creditors,  and  for  the  use  of  himself,  to  the  evil   example, 

&c.(y) 

(523)  Fraudulent  insolvency  hy  a  tax  collector.     First  count,  emhez- 

zling  creditor'' s  property. 

That  E.  N.  F.,  &c.,  on,  &c.,  at,  &c.,  made  and  presented  to  the 
Honorable  the  Judges  of  the  Court  of  Common  Pleas  of  the 
County  of  Philadelphia  his  petition  in  writing,  praying *for  the 
benefit  of  the  insolvent  laws  of  this  commonwealth,  according 
to  the  form,  force,  and  effect  of  the  said  insolvent  laws,  and  the 
said  E.  N.  F.,  so  petitioning  as  aforesaid,  being  then  and  there 

(y)  This  is  the  indictment  in  Dyott's  case,  on  which  the  defendant  was  con- 
victed and  sentenced,  and  the  judgment  sustained  in  the  Supreme  Court  of 
Pennsylvania.  Com.  v.  Dyott,  5  Whart.  67.  The  allegations  in  brackets  in  the 
first  count  are  not  in  the  original  form,  but  are  here  introduced  in  consequence 
of  a  judgment  of  the  Court  of  Quarter  Sessions  in  Philadelphia,  in  Com.  v. 
McCabe,  June  7,  1854,  in  which  they  were  held  necessary. 

471 


(524)  OFFENCES  AGAINST  PROPERTY. 

indebted  to  the  County  of  Philadelphia  in  a  large  sum  of  money, 
to  wit,  in  the  sum  of  ten  thousand  dollars,  being  the  same  sum 
of  money  embezzled  as  hereinafter  mentioned,  and  also  to  divers 
others,  whose  names  are  to  the  jurors  aforesaid  unknown,  in 
divers  large  sums  of  money  to  the  jurors  aforesaid  unknown,  the 
said  court,  on  the  said  petition  so  presented  as  aforesaid,  did  then 
and  there  appoint  the  third  day  of  November,  one  thousand  eight 
hundred  and  forty-seven,  for  the  purpose  of  hearing  the  said  E. 
N.  F.  and  his  creditors,  at  the  County  Court-house,  in  the  City 
of  Philadelphia,  on  which  said  last  mentioned  day,  and  at  the 
court-house  aforesaid,  and  on  the  several  days  and  times  there- 
after to  which  the  said  case  was  duly  adjourned,  to  wit,  at  the 
county  aforesaid,  the  said  court  did  meet  and  sit,  for  the  purpose 
aforesaid.  [And  it  appearing  to  the  said  court  on  the  said  hear- 
ings that  there  was  just  ground  to  believe  that  the  said  E.  N.  F. 
had  concealed  part  of  his  estate  and  effects,  and  colluded  and 
contrived  with  divers  persons  for  such  concealment,  and  con- 
veyed the  same  to  divers  persons  for  the  use  of  himself  and  his 
family  and  friends,  with  the  expectation  of  receiving  some  future 
benefit  to  himself  and  others,  and  with  intent  to  defraud  his 
creditors,  the  said  court  on  the  said  [staling  time)  did  commit  the 
said  E.  N.  F.  to  the  jail  of  the  said  county,  for  trial  at  the  court.] 
And  the  inquest  aforesaid,  on  their  oaths  and  affirmations  afore- 
said, do  further  present,  that  theretofore,  to  wit,  on  the  day  and 
year  first  aforesaid,  at  the  county  and  within  the  jurisdiction 
aforesaid,  he  the  said  C.  N.  F.  *  being  then  and  there  the  agent 
of  the  said  County  of  Philadelphia,  unlawfully  embezzled  divers 
large  sums  of  money,  to  wit,  ten  thousand  dollars,  the  property 
of  said  county,  with  which  said  sums  of  money  he  had  been  in- 
trusted as  agent  aforesaid,  by  the  said  County  of  Philadelphia, 
to  the  prejudice  of  the  said  County  of  Philadelphia,  the  said 
county  being  then  and  there  a  creditor  of  him  the  said  E.,  and 
opposing  his  petition  aforesaid,  as  well  as  of  the  other  opposing 
creditors  of  said  E.,  with  intent  to  defraud  the  said  County  of 
Philadelphia,  contrary,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(524)  Second  count.     Applying  to  his  own  use  trust  money,  ^c. 

I  Same  as  in  first  count  to  *,  and  then  proceed : 

being  then  and  there  the  agent  of  the  County  of  Philadelphia, 
472 


FRAUDULENT   INSOLVENCY,    ETC.  (524) 

and  intrusted  as  such  with  divers  large  sums  of  money,  to  wit, 
ten  thousand  dollars,  the  property  of  said  county,  unlawfully  ap- 
plied to  his  own  use  the  said  money,  to  the  prejudice  of  the  said 
County  of  Philadelphia,  the  said  county  being  an  opposing  cred- 
itor of  him  the  said  E.,  at  the  hearing  aforesaid,  as  well  as  of 
the  other  opposing  creditors  of  the  said  E.,  with  intent  to  de- 
fraud the  said  county,  contrary,  &c.,  and  against,  &c.  ( Conclude 
as  in  hook  1,  chapter  3.) 

TJiird  count.     Same,  differently  stated.     As  in  first  count  to  *,  and 

proceed : 

being  then  and  there  the  agent  of  the  County  of  Philadelphia, 
unlawfully  embezzled  and  applied  to  his  ow^n  use  divers  large 
sums  of  money,  to  wit,  ten  thousand  dollars,  the  property  of  said 
county,  with  which  said  money  he  had  been  intrusted  as  agent 
aforesaid,  by  the  said  County  of  Philadelphia,  to  the  prejudice 
of  the  said  county,  the  said  county  being  creditor  of  the  said  E., 
opposing  his  petition  as  aforesaid,  as  well  as  of  the  other  oppos- 
ing creditors  of  the  said  E.,  with  intent  to  defraud  the  said 
county,  contrary,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

Fourth  count.     Embezzlement,  ^c.     The  appointment  as  collector  be- 
ing more  fully  set  forth. 

That  the  said  E.  N.  F.,  on,  &c.,  at,  &c.,  was  duly  constituted 
and  appointed  collector  of  taxes  for  the  County  of  Philadelphia, 
in  South  Ward  in  the  City  of  Philadelphia,  and  being  so  con- 
stituted and  appointed,  he  the  said  E.  then  and  there  exercised 
the  said  office  of  collector  of  taxes,  and  was  intrusted  with  and 
collected  divers  large  sums  of  money  in  his  capacity  as  collector 
and  agent  as  aforesaid  for  the  said  county,  said  money  belonging 
to  said,  county.  And  the  inquest  aforesaid,  on  their  oaths  and 
affirmations  aforesaid,  do  further  present,  that  afterwards,  to  wit, 
on  the  day  and  year  first  aforesaid,  at  the  county  and  within  the 
jurisdiction  aforesaid,  he,  &c.,  made  and  presented  to  the  said 
Judges  of  the  Court  of  Common  Pleas  his  petition  in  writing  (the 
effect  of  which  in  the  first  count  of  this  indictment  is  more  partic- 
ularly set  forth),  he  the  said  E,  being  then  and  there  indebted  to 
the  said  County  of  Philadelphia,  in  the  sum  of  money  embezzled 
as  hereinafter  mentioned,  and  also  to  divers  others,  whose  names 

473 


(524)  OFFENCES  AGAINST  PROPERTY. 

are  to  this  inquest  unknown  ;  whereupon  the  said  court  took 
such  action  on  said  petition,  and  such  proceedings  were  thereon 
had  therein  as  in  the  first  count  of  this  indictment  is  described. 
And  the  inquest  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  further  present,  that  aftervvardsj  to  wit,  on  the  day 
and  year  first  aforesaid,  at  the  county  and  within  the  jurisdiction 
aforesaid,  the  said  E.  N.  F.,  being  such  collector  of  taxes  and 
agent  as  aforesaid  for  the  said  County  of  Philadelphia,*  unlaw- 
fully embezzled  divers  large  sums  of  money,  to  wit,  ten  thousand 
dollars,  being  part  of  the  said  money  which  he  had  collected  as 
collector  of  taxes  and  agent  as  aforesaid  for  the  County  of  Phil- 
adel|)hia,  said  money  being  the  property  of  the  said  county,  to 
the  prejudice  of  the  said  county,  the  said  county  being  an  oppos- 
ing creditor  of  the  said  E.  at  the  hearing  aforesaid,  as  well  as  of 
the  other  opposing  creditors  of  said  E.,  with  intent  to  defraud 
the  said  county,  contrary,  &c.    (  Conclude  as  in  book  1,  chapter  3.) 

Sixth  count.     State  the  office,  ^c.,  as  in  ffth  count  to  *,  and  pro- 
ceed : 

unlawfully  applied  to  his  own  use  divers  large  sums  of  money, 
to  wit,  ten  thousand  dollars,  being  the  said  money  with  which  he 
had  been  intrusted  as  collector  aforesaid,  and  agent  for  the  said 
County  of  Philadelphia,  said  money  being  the  property  of  the 
said  county,  to  the  prejudice  of  the  said  county,  the  said  county 
being  an  opposi!ig  creditor  of  the  said  E.  at  the  hearing  afore- 
said, as  well  as  of  other  opposing  creditors  of  said  E.,  with  in- 
tent to  defraud  the  said  county,  contrary,  &c.  {Conclude  as  in 
book  1,  chapter  3.) 

Seventh  count.  Same  as  sixth,  introducing  the  averment  that  the 
money  embezzled  was  part  of  the  money  which  had  been  in- 
trusted to  the  collector. 

Eighth  count.     Colluding,  ^c.     Same  as  first  count  to  *,  and  then 

proceed : 

And  the  said  E.  N.  F.,  fraudulently  and  wickedly  contriving 
and  intending  to  cheat  and  defraud  the  said  County  of  Philadel- 
phia, and   others,  his  creditors  aforesaid,  to  wit,  on  the  day  and 
year  first  aforesaid,  at  the  city  and  county  aforesaid,  did  collude 
474 


VIOLATION    OP   FACTOR   LAW.  (525) 

and  contrive  with  certain  persons  whose  names  are  to  this  inquest 
as  yet  unknown,  for  the  conceahnent  of  a  part  of  his  estate  and 
effects,  to  wit,  money  of  the  value  of  ten  thousand  dollars,  there- 
by expecting  further  benefit  to  himself,  with  intent  to  defraud  the 
said  County  of  Philadelphia,  and  others,  his  creditors,  to  the  evil 
example  of  all  others  in  like  manner  offending,  contrary,  &c. 
(Conclude  as  in  book  1,  chapter  3.) 

V.  VIOLATION   OF   FACTOR  LAW. 

(525)  Pledging  goods  consigned,  and  applying  the  proceeds  to  defend- 

ant's use,  under  the  Pennsylvania  statute. 

(526)  Second  count.     Selling  same,  and  applying  to  defendant's 

use  the  proceeds. 

(527)  Third  count.     Selling  same  for  negotiable  instrument. 

(525)  First  count.     Pledging  goods  consigned,  and  applying  the 
proceeds  to  defendants  use,  U7ider  the  Pennsylvania  statute. 

That  J.  (^.  A.,  &c.,  and  D.  S.  H.,  on,  &c.,  at,  &c.,  then  and 
there  being  the  factors  and  consignees  of  a  certain  C.  D.,  with 
force  and  arms,  &c.,  did  then  and  there  receive  as  a  consignment 
for  sale  from  the  said  C.  D.  certain  goods  and  merchandise,  to 
wit  (stating-  the  goods  iviih  the  same  particularity  as  in  larceny)^ 
together  with  other  goods  and  merchandise  of  the  goods  and 
property  of  the  said  C.  D.,  in  all  of  great  value,  to  wit,  of  the 
value  of  one  thousand  four  hundred  and  two  dollars,  and  that 
the  said  J.  (^.  A.  and  D.  S.  H.,  so  being  such  consignees  and 
factors  as  aforesaid,  on  the  day  and  year  as  aforesaid,  at  the 
county  aforesaid,  and  within  the  jurisdiction  aforesaid,  with  force 
and  arms,  &c.,  in  violation  of  good  faith  and  with  intent  to  de- 
fraud the  said  C.  D.,  did  then  and  there  deposit  and  pledge  with 
one  J.  B.{^)  said  merchandise,  so  consigned  to  them  as  aforesaid, 
as  a  security  for  certain  money,  to  wit,  the  sum  of  one  thousand 
four  hundred  and  two  dollars,  which  they  the  said  J.  Q,.  A;  and 
D.  S.  H.  had  before  that  time  borrowed  from  the  said  J.  B.,  and 
did  then  and  there  apply  and  dispose  of  to  their  own  use  the  said 
money,  to  the  great  damage  of  the  said  C.  D.,  to  the  evil  exam- 
ple of  all  others  in  the  like  case  offending,  contrary,  &c.,  and 
against,  &c.     [Conclude  as  in  book  1,  chapter  3.) 

(A)  If  the  party  from  whom  the  money  was  borrowed,  and  to  whom  the 
property  was  pledged,  be  unknown,  it  can  be  averred  so. 

475 


(527)  OFFENCES  AGAINST  PROPERTY. 

(526)  Second  count.     Selling  same,  and  applying  to  defendant's  use 

the  proceeds. 
That  the  said  J.  Q.  A.  and  D.  S.  H.,  on,  &c.,  then  and  there 
being  the  consignees  and  factors  of  the  said  C.  D-,  with  force 
and  arms,  &c.,  did  then  and  there  receive  from  the  said  C.  D.,  as 
a  consignment  for  sale,  certain  other  goods  and  merchandise,  to 
wit,  &c.,  of  the  goods  and  property  of  the  said  C.  D.,  and  that 
the  said  J.  Q,.  A.  and  D.  S.  H.  so  being  such  consignees  and 
factors  as  last  aforesaid,  on  the  day  and  year  last  aforesaid,  at 
the  county  aforesaid,  and  within  the  jurisdiction  of  this  court, 
with  force  and  arms,  &c.,  in  violation  of  good  faith,  and  with 
intent  to  defraud  the  said  C.  D.,  did  then  and  there  sell  the  last 
mentioned  goods  and  merchandise  to  one  B.  C,  at  and  for  the 
sum  of  one  thousand  four  hundred  and  two  dollars,  and  apply 
and  dispose  of  to  their  own  use,  the  said  sum  of  one  thousand 
four  hundred  and  two  dollars  so  received,  to  the  great  damage 
of  the  said  C.  D.,  to  the  evil  example  of  all  others  in  like  case 
offending,  contrary,  &c.,  and  against,  &c.  {Conclude  as  in  book 
1,  chapter  3.) 

(527)   Third  count.     Selling  same  for  negotiable  instrument. 

That  the  said  J.  Q,.  A.  and  D.  S.  H.,  on,  &c.,  then  and  there 
being  the  consignees  and  factors  of  the  said  C.  D.,  with  force 
and  arms,  &c.,  did  then  and  there  receive  from  the  said  C.  D.,  as 
a  consignment  for  sale,  certain  other  goods  and  merchandise,  to 
wit,  of  the  goods  and  property  of  the  said  C.  D.,  *  and  that  the 
said  J.  Q.  A.  and  D.  S.  H.,  so  being  such  consignees  and  fac- 
tors as  last  aforesaid,  on  the  day  and  year  last  aforesaid,  at  the 
county  aforesaid,  with  force  and  arms,  &c.,  in  violation  of  good 
faith,  and  with  intent  to  defraud  the  said  C.  D.,  did  sell  the  said 
last  mentioned  goods  and  merchandise  to  one  A.  B.,  at  and  for 
the  price  and  sum  of  one  thousand  four  hundred  and  two  dollars, 
and  received  therefor  as  such  consignees  the  negotiable  instru- 
ments of  the  purchasers  of  said  last  mentioned  goods  and  mer- 
chandise, whose  names  are  as  yet  unknown  to  the  inquest  afore- 
said, and  with  force  and  arms,  &c.,  and  in  violation  of  good  faith, 
and  with  intent  to  defraud  the  said  C.  D.,  did  then  and  there 
apply  and  dispose  of  to  their  own  use  the  said  negotiable  instru- 
476 


VIOLATION    OP    FACTOR   LAW.  (527) 

merits  raised  and  acquired  by  the  sale  of  the  said  last  mentioned 
goods  and  merchandise  of  the  said  C.  D.,  to  the  evil  example 
of  others  in  like  case  offending,  contrary,  &c.,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

Fourth  count.     Same  as  third  to  *,  and  proceed : 

and  did  then  and  there  undertake  and  faithfully  jDromise  the  said 
C.  D.  to  sell  the  said  last  mentioned  goods  and  merchandise  for 
and  on  account  of  him  the  said  C.  D.,  and  to  render  him  a  just 
and  true  account  of  said  last  named  sale,  and  well  and  truly  to 
pay  to  the  said  C.  D.  the  proceeds  thereof  according  to  their 
duty  as  such  consignees  and  factors  as  last  aforesaid,  but  that 
the  said  J.  Q.  A.  and  D.  S.  H.,  so  being  such  consignees  and 
factors  as  last  aforesaid,  on  the  day  and  year  last  aforesaid,  at 
the  county  aforesaid,  with  force  and  arms,  &c.,  in  violation  of 
good  faith  and  with  intent  to  defraud  the  said  C.  D.,  did  then 
and  there  sell  to  one  A.  B.  the  last  named  goods  and  merchan- 
dise at  and  for  the  price  and  sum  of  one  thousand  four  hundred 
and  two  dollars,  and  did  then  and  there  apply  and  dispose  of  to 
their  own  use  the  said  last  named  sum  of  one  thousand  four 
hundred  and  two  dollars  raised  by  the  sale  of  the  last  named 
goods  and  merchandise,  to  the  great  damage  of  the  said  C.  D., 
to  the  evil  example  of  all  others  in  like  case  offending,  contrary, 
&c.,  and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

Fifth  count.     Same  stated  in  another  shape. 

That  the  said  J.  Q,.  A.  and  D.  S.  H.,  on,  &c.,  then  and  there 
being  the  consignees  and  factors  of  the  said  C.  D.,  with  force 
ana  arms,  &c.,  in  violation  of  good  faith,  and  with  intent  to 
defraud  the  said  C.  D.,  did  apply  and  dispose  of  for  their  own 
use  certain  other  money,  to  wit,  the  sum  of  one  thousand  four 
hundred  and  two  dollars,  which  said  last  mentioned  sum  of 
money  had  before  that  time  been  raised  and  acquired  by  them 
the  said  J.  Q.  A.  and  D.  S.  H.,  by  the  sale  of  certain  other  goods 
and  merchandise,  to  wit  [stating  the  goods),  of  the  goods  and 
property  of  the  said  C.  D.,  which  said  last  named  goods  and 
merchandise  had  been  before  that  time  consigned  for  sale  to  them 
the  said  J.  Q.  A.  and  D.  S.  H.  by  the  said  C.  D.,  to  the  great 
damage  of  the  said  C.  D.,  to  the  evil  example  of  others  in  like 

477 


OFFENCES  AGAINST  PROPERTY. 


case  offending,  contrary,  &c.,  and  against,  &c.     {Conclude  as  in 
book  1,  chapter  3.) 

VL  OBTAINING   GOODS  BY  EALSE   PRETENCES.(0 

(528)  General  frame  of  indictment. 

(529)  Form  used  in  Massachusetts. 

(530)  Same  in  New  York. 

(531)  Pretence  that  defendant  was  agent  of  a  lottery,  &c. 

(532)  Obtaining  money  by  personating  another. 

(Z)  See  Wh.  C.  L.  on  the  subject  generally,  as  follows  :  — 

A.  Cheats  at  Common  Law,  §  2051.  » 

B.  Statutory  Cheats  by  False  Pretences. 

Massachusetts. 

Obtaining  by  false  pretence,  or  privy,  or  false  token,  goods,  &c., 
or  the  signature  to  a  written  instrument,  &c.,  §  2072. 
New  York. 

Obtaining  by  false  token,  or  writing,  or   false   pretence,  the  sig- 
nature to  a  written  instrument,  or  money,  personal  property, 
&c.,  §  2073. 
Same,  when  the  thing  obtained  is  a  bank  note,  &c.,  §  2074. 
Same,  where  the  pretended  purpose  is  charitable  or  benevolent, 
§  2075. 
Pennsylvania. 

Obtaining   by   false    token,    writing,  or  pretence,  property,  &c., 

§  2076. 
Obtaining  credit  at  hotel  by  same,  &c.,  §  2077. 
Virginia. 

Obtaining  by  false  pretence,  or  token,  property,  &c.,  or  signature 
to  paper,  §  2078. 
Ohio. 

Obtaining  money  by  false  pretences,  making  fraudulent  transfer 

of  property  to  cheat  creditors,  §  2079. 
Selling  or  conveying  land  without  title,  §  2080. 
I.   Character  of  the  Pretences,  §  2085. 

1st.  As  to  defendant's  means,  §  2085. 
2d.  As  to  defendant's  character  and  personality,  §  2092. 
3d.  As  to  the  nature  or  value  of  goods  or  paper,  §  2102. 
4th.  The  pretences  at  the  time  must  have  been  false,  §  2110. 
5th.  They  need  not  be  in  words,  §  2113. 
6th.  They  need  not  be  by  the  defendant  personally,  §  2114. 
7th.  They  must  relate  to  a  present  state  of  things,  §  2118. 
8th.  They  must  have  been  the  operative  cause  of  the  transfer,  §  2120. 
n.  Position  of  Prosecutor  at  the  time,  as  to  Carelessness  or  Culpability,  §  2138. 
in.  Properly  included  by  Statute,  §  2134. 
IV.   Where  the  Offence  is  Triable,  §  2142. 
478 


\ 


FALSE  PRETENCES. 

(533)  Pretence  that  defendant  was  M.  11.,  who  had  cured  Mrs.  C.  at 
the  .Oxford  Infirmary,  whereby  he  induced  the  prosecutor  to 
to  buy  a  bottle  of  ointment,  &c.,  for  which  he  received  a  sov- 
ereign, giving  15s.  in  change. 

{Analysis  of  False  Pretences  in  Wh.  C.  L.) 
V.  Indictment,  §  2144. 

1st.  "  That  A.  B.,"  &c.  (defendants),  did  "  falsely,  &c.,  pretend,"  §  2144. 

2d.  "To  A.  B.,"  &c.,  §  2145. 

3d.  "  ITiat,"  &c.  (Statement  of  Pretence),  §  2148. 

4th  Description  of  property,  §  2155. 

5th.  "Whereas,  in  truth  and  fact  "  (Negation  of  Pretence),  §  2158. 

6th.  Scienter  and  intention,  §  2159. 

7th.  "  By  means,"  &c.,  of  which  pretences,  §  2162. 
In  connection  with  the  above,  the  following  observations  may  be  of  use  :  — 
It  will  be  noticed  at  the  outset,  that  in  their  operative  clauses,  the  statutes  in 
England  and  in  Massachusetts,  New  York,  and  Pennsylvania,  are  the  same. 
See  Wh.  C.  L.  §§  2071-85.  Keeping  this  in  mind,  the  general  definition 
afforded  by  the  cases  both  in  England  and  this  country  is,  that  a  false  pretence 
must  be  a  false  representation  as  to  some  existing  fact,  made  for  the  purpose  of 
inducing  the  prosecutor  to  part  with  his  property,  and  not  a  mere  promise,  which 
the  prisoner  intends  to  break,  as  for  payment  of  goods  on  delivery.  R.  v.  Good- 
hall,  R.  &  R.  461  ;  R.  V.  Parkes,  2  Leach  616  ;  Com.  v.  Drew,  19  Pick.  184  ;  Com. 
V.  Hutchinson,  2  Pa.  L.  J.  242 ;  Com.  v.  Stone,  4  Met.  48  ;  Coai.  v.  Wilgus,  4  Pick. 
177.  Thus,  where  an  indictment  stated  the  false  pretence  to  be,  that  the  pris- 
oner would  tell  the  prosecutor  where  his  strayed  horse  was,  if  he  would  give 
him  one  pound,  without  alleging  that  the  prisoner  pretended  he  knew  where  it 
•was,  it  was  held  bad,  though  the  prisoner  received  the  money,  and  refused  to 
tell.  R.  V.  Jauies  Douglass,  1  Mood.  C.  C.  462.  But  it  has  been  holden  that 
obtaining  money  as  a  share  of  a  bet,  on  a  fraudulent  representation  that  it  had 
been  laid,  ihough  to  be  decided  by  the  future  event  of  a  pedestrian  feat,  is  a 
false  pretence.  R.  v.  Young,  3  T.  R.  98.  It  is  not  necessary  to  constitute  the 
offence,  as  was  thought  in  New  York  (People  v.  Conger,  1  Wheel.  C.  C.  449), 
that  the  prisoner  should,  orally,  or  in  writing,  make  any  false  assertion;  for  if 
he  present  a  genuine  order  for  the  payment  of  money,  and  assumes  by  his  con- 
duct to  be  the  person  to  whom  it  is  payable,  and  by  this  means  fraudulently  ob- 
tains money  which  belongs  to  another,  he  will  be  within  the  statute.  R.  v.  Story, 
R.  &  R.  81.  Thus  where  a  party  not  being  a  member  of  the  University  of  Oxford, 
went  into  a  shop  there,  wearing  the  academic  cap  and  gown,  and  obtained 
goods,  his  dress  was  held  a  sufficient  false  pretence,  though  nothing  passed  in 
words.  R.  V.  Barnard,  7  C.  &  P.  784.  Another  instance  in  which  the  acts  and 
conduct  of  a  party  were  held  tantamount  to  a  false  pretence,  Avithout  false  ver- 
bal representations,  was  that  where  a  party  obtained  goods  and  money  in  ex- 
change for  a  counterfeit  promissory  note,  by  asking  for  goods  at  a  shop,  and  at 
the  same  time  throwing  down,  as  in  payment,  the  note  in  question,  which  pur- 
ported to  be  of  larger  value  than  the  price  of  the  goods,  without  stating  it  to 
be  genuine.    R.  v.  Freeth,  R.  &  R.  127.     (In  this  case,  the  first  and  second 

479 


OFFENCES  AGAINST  PEOPERTY. 

(534)  Against  a  member   of  a  benefit  club   or  society,  for   obtaining 

money  belonging  to  the  rest  of  the  members,  under  false  pre- 
tences. 

(535)  Another  form  for  same,  coupled  with  a  production  to  the  society 
of  a  false  certificate  of  burial. 

counts  were  on  the  statute  for  false  pretence;  the  third  was  for  a  cheat  at  com- 
mon law.  Against  the  last  count,  it  was  argued  that  a  note  for  less  than 
twenty  shillings  being  void  and  prohibited  by  law,  it  was  no  offence  to  forge  it 
(as  to  which  point  see  Rushworth's  case,  R.  &  R.  318),  or  to  obtain  money  on 
it  when  forged,  as  the  party  to  whom  it  was  uttered  ought  to  have  been  on  his 
guard  ;  Graham,  B.,  however,  left  the  case  to  the  jury,  directing  them,  that  the 
evidence,  if  true,  sustained  the  second  and  third  counts.  Verdict,  guilty  on 
both  those  counts.  The  judges  were  of  the  opinion  stated  above,  which  appears, 
in  substance,  confined  to  the  second  count ;  but  Lawrence,  J.,  thought  the  shop- 
keeper not  cheated  if  he  parted  with  his  goods  for  a  piece  of  paper,  which, 
being  a  promissory  note  for  less  than  twenty  shillings,  he  must  be  presumed  in 
law  to  know  in  law  was  worth  nothing,  if  genuine.)  Where,  however,  goods 
were  obtained  by  means  of  a  forged  order  in  writing,  requesting  the  prosecutor 
to  let  the  bearer  have  linen  for  J.  R.,  and  signed  J.  R.,  this  is  reported  to  have 
been  held  by  Taunton,  J.,  to  be  uttering  a  forged  request  for  delivery  of  goods, 
and  a  felony  under  1  Wm.  IV.  ch.  66,  s.  19  (R.  v.  Evans,  5  C.  &  P.  553)  ; 
whereas,  obtaining  money  from  a  county  treasurer  by  a  forged  note  purporting 
to  be  signed  by  a  magistrate,  for  paying  the  expenses  of  conveying  vagrants, 
had  been  held  a  false  pretence  in  R.  v.  Rushworth,  R.  &  R.  317  ;  1  Stark.  C.  P. 
396,  S.  C.  Uttering  as  good  and  available,  a  bank  note  which  had  been  long 
cancelled,  and  the  makers  bankrupt,  has  been  thought  not  to  be  sufiicient  evi- 
dence of  a  fraud  indictable  at  common  law,  or  a  cheat,  unless  bankruptcy  be 
brought  home  to  all  the  parties.  R.  v.  Spencer,  3  C.  &  P.  420  ;  R.  v.  Hurst,  R. 
&  R.  460 ;  see  Dickinson's  Q.  S.  p.  330.  So  great  a  strictness  in  proof,  how- 
ever, is  not  deemed  essential  in  this  country.  Com.  v.  Stone,  4  Met.  43.  And 
the  reason  of  the  distinction  here  is,  that,  generally  speaking,  ^ere  in  the 
United  States  a  bank  becomes  publicly  insolvent,  there  is  no  one  behind  to  pur- 
sue, whereas  in  England  the  members  of  the  company  are  still  responsible.  On 
the  other  hand,  it  is  evident  that  putting  a  note  of  this  kind  into  the  general 
circulation  of  the  country  is  likely,  by  defrauding  a  succession  of  persons,  to 
affect  the  public,  and  is  not  the  mere  case  of  cheating  in  a  private  bargain. 

Obtaining  goods  by  giving  in  payment  a  check  on  a  banker  with  whom  the 
party  keeps  no  cash,  and  which  he  knows  will  not  be  paid,  was  declared  by  all 
the  judges  to  be  indictable  as  a  false  pretence,  though  it  was  not  an  indictable 
fraud  at  common  law.  R.  v.  Lara,  6  T.  R.  565  ;  R.  v.  Hunt,  R.  &  R.  460.  In  a 
false  pretence  of  this  kind,  it  was  held  to  be  well  laid,  "  that  the  check  was  a 
good  and  genuine  order  for  the  payment  of,  and  of  the  value  of,  the  sum  speci- 
fied." R.  V.  Smythe  Parker,  2  Mood.  C.  C.  1.  A  count  alleged  the  prisoner 
to  have  obtained  from  G.  P.  by  a  false  pretence  (stated),  a  sovereign, 
"  with  intent  to  defraud  G.  P.  of  the  sum  of  five  shillings,  parcel  of  the 
value  of  the  last  mentioned  piece  of  the  current  gold  coin."     Prisoner  was 

4«0 


FALSE  PRETENCES, 

(536)  First  count.     Pretence  that  a  broken  bank  note  was  good. 

(537)  Pretence  that  a  flash  note  was  good. 

(538)  Pretence  that  a  worthless  check  or  order  was  good. 

(539)  Another  form  for  same. 

shown  to  have  made  the  pretence  laid,  viz.,  that  he  was  Mr.  II.,  and  therebj^' 
induced  G.  P.  to  buy,  at  the  cost  of  five  shillings,  a  bottle  of  stuff  he  said  would 
cure  G.  P.'s  cliild.  G.  P.  gave  him  a  sovereign,  and  received  fifteen  shillinga 
in  change.  Prisoner  was  shown  not  to  be  H. ;  held  to  be  a  false  pretence,  and 
with  intent  well  laid.  Reg.  v.  Bloomfield,  C.  &  M.  537.  See  post,  533.  A 
false  statement  to  a  parish  officer  as  an  excuse  for  not  working,  that  the  party 
has  not  clothes,  is  not  a  false  pretence  within  the  act,  though  it  induce  the 
officer  to  give  him  clothes,  as  it  was  rather  an  excuse  for  not  working  than  a 
false  pretence  to  obtain  goods.    R.  v.  Wakeling,  R.  &  R.  504. 

Obtaining  money  by  a  pretence,  known  by  the  offender  to  be  fixlse  at  the 
time,  is  equally  criminal,  though  the  party  who  parted  with  the  money  laid  a 
plan  to  entrap  him  into  committing  the  offence.    R.  i'.  Ady,  7  C.  &  P.  140. 

As  to  the  subject  matter  obtained,  it  is  said  that  obtaining  a  check  on  a 
banker,  on  unstamped  paper,  payable  to  a  person  not  named,  but  not  to  bearer 
also,  is  not  obtaining  a  "  valuable  security  "  within  the  act ;  for,  by  55  Geo.  III.  c. 
184,  the  banker  would  be  liable  to  a  penalty  of  £50  for  paying  it.  R.  v.  Yates, 
1  Mood  C.  C.  170.  Obtaining  credit  on  account  from  the  prisoner's  bankers, 
by  drawing  a  bill  on  a  person  on  whom  he  has  a  right  to  draw,  and  which  has 
no  chance  of  being  paid,  and  delivering  it  to  them,  is  not  obtaining  money 
under  7  &  8  Geo.  IV.,  though  the  bankers  in  consequence  pay  money  on  the 
prisoner's  account  to  other  people,  to  a  larger  extent  than  they  would  otherwise 
have  done.    R.  v.  Worrell,  1  Mood.  C.  C.  224. 

In  the  cases  which  have  occurred  in  this  country,  the  same  rules  are  applied. 
Thus,  where  one  under  a  fictitious  name  delivered  to  a  person  to  sell  on  com- 
mission spurious  lottery  tickets,  purporting  to  be  signed  by  himself,  and  received 
from  the  agent  the  proceeds  of  the  sale  (Com.  v.  Wilgus,  4  Pick.  177)  ;  where 
a  keeper  of  an  intelligence  office,  by  falsely  pretending  he  had  a  situation  in 
view,  induced  the  prosecutor  to  pay  him  two  dollars  as  a  premium  (Com.  v. 
Parker,  Thacher's  C.  C.  24)  ;  where  the  defendant  falsely  pretended  to  the 
prosecutor  that  a  horse  he  was  about  to  sell  him  was  the  horse  "  Charley," 
whereas  he  was  not  that  horse,  but  another  of  equal  worth  (State  v.  Mills,  17 
Maine  R.  211)  ;  where  a  person  obtained  goods  under  the  false  pretence  that  he 
lived  with  and  was  employed  by  A.  B.,  who  sent  him  for  them  (People  v. 
Johnson,  12  Johns.  292;  Lambert  v.  People,  9  Cow.  578)  ;  where  the  defendant 
represented  himself  to  be  in  a  successful  business  as  a  merchant  in  Boston, 
with  from  S9,000  to  $10,000  over  and  above  all  his  debts,  and,  to  give  weight  to 
this  assertion,  represented  that  he  had  never  had  a  note  protested  in  his  life, 
and  had  then  no  indorsers  ;  where  in  one  count  the  pretence  was,  "  that  he, 
the  said  J.  A.  B.,  possessed  a  capital  of  $8,000,  that  the  said  $8,000  had  come 
to  him  through  his  wife,  it  being  her  estate,  and  that  a  part  of  it  had  ah-eady 
come  into  his  possession,  a  part  would  come  into  his  possession  in  the  month 
then  next  ensuing,  and  that  for  the  remaining  part  thereof  he  would  be  obliged 

VOL.  I.  —  31  48X 


OFFENCES  AGAINST  PROPERTY. 

(540)  Obtaining]  goods  by  check  on  a  bank  where  the  defendant  had  no 

effects. 

(541)  Pretence  that  defendant  was  the  agent  of  A.  B.,  and  as  such  had 

been  sent  by  A.  B.  to  C.  D.,  to  receive  certain  money  due  from 
the  latter  to  the  former. 
(541^)   Pretence  that  defendant  was  broker  for  undisclosed  principal.   ■ 

(542)  Pretending  to  be  clerk  of  a  steamboat,  and  authorized  to  collect 

money  for  the  boat. 

(543)  Pretence  made  to  a  tradesman    that   defendant   was    a   servant 

to  a  customer,  and  was  sent  for  the  particular  goods  obtained. 

(544)  Another  form  for  same. 

(544^)  Pretence  that   defendant  was   asked   by  "  a  person   living  in  a 
large  house  down  the  street "  to  buy  carpet  of  prosecutor. 

(545)  Pretence  that  the  defendant  was  entitled  to  grant  a  lease  of  certain 

freehold  property. 

(546)  Pretence  that  the  defendant  was  authorized  agent  of  the  Execu- 

tive Committee  of  the  Exhibition  of  the  Works  of  Industry  of 
all  Nations,  and  that  he  had  power  to  allot  space  to  private 
individuals  for  the  exhibition  of  their  merchandise. 

(547)  Pretence  that  pi'isoner  was  an  unmarried  man,  and  that  having 

been  engaged  to  the  prosecutrix,  and  the  engagement  broken 
off,  he  was  entitled  to  support  an  action  of  breach  of  promise 
against  her,  by  which  means  he  obtained  money  from  her. 

(548)  Pretence  that  defendants  were  the  agents  of  P.  N.,  who  was  the 

owner  of  certain  stock  and  land,  &c.,  the  latter  of  which  was 
in  iact  mortgaged. 

(549)  That   defendant   possessed   a   cajiital  of  eight  thousand  dollars, 

which  had  come  to  him  through  liis  wife,  it  being  her  estate, 

to  wait  for  a  short  time ;  "  and  in  the  second  count,  that  he,  the  said  J.  A.  B., 
"  possessed  a  capital  of  $8,000,  which  said  S8,000  had  come  to  him  tlirough 
his  wife,  it  being  her  estate ;  "  and  in  a  third,  "  that  he  was  possessed  of 
$8,000"  (Com.  V.  Burdick,  2  Barr,  163)  ;  where  the  defendant  pretended  to  the 
prosecutor  that  the  goods  to  be  purchased  were  ordered  for  a  hotel-keeper  in 
Washington,  who  was  a  man  of  credit,  and  to  whom  they  we^e  to  be  immedi- 
ately forwarded  (Com.  v.  Spring,  cited  3  Pa.  L.  J.  89)  ;  where  the  pretence  was 
that  the  defendant  owned  real  estate  in  Passyunk  Road  worth  $7,000,  and  that 
he  had  personal  property  and  other  means  to  meet  his  liabilities,  and  that  he 
was  in  good  credit  at  the  Philadelphia  Bank  (Com.  v.  M'Crossin,  3  Pa.  L.  J.  219) ; 
where  the  indictment  charged  that  N.  represented  to  O.  that  he  possessed  four 
valuable  negroes,  and  that  he  would  let  him  have  them  for  four  bills  of  ex- 
change on  Philadelphia,  and  that,  in  consequence  of  this  representation,  the 
bills  were  drawn  by  O.,  and  that  this  representation  Avas  made  knowingly  and 
designedly,  and  with  intent  to  cheat  O.  of  his  drafts,  and  that,  in  fact.  N.  pos- 
sessed no  such  slaves  as  he  pretended  to  have  (State  v.  Newell,  1  Mo.  R.  177)  ; 
—  in  all  these  cases,  there  was  held  to  be  the  false  representation  of  an  exist- 
ing fact,  and  that  the  exigencies  of  the  statute  therefore  were  satisfied. 

482 


FALSE    PRETENCES. 

and  that  a  part  of  it  had  already  come  into  his  possession, 
and  a  part  would  come  into  his  possession  in  the  month  then 
next  ensuing,  &c. 

(550)  Second   count.     That    defendant  had    a  capital  of  $8,000, 

which  came  through  his  wife. 

(551)  Third  count.     That  defendant  had  a  capital  of  SS,O0O. 

(552)  Pretence  that  defendant  was  well  off  and  free  from  de1)t,  &c. 

(553)  Second  count.     Setting  forth  the  pretence  more  fully. 

(554)  Pretence  that   certain   property  of  the  defendant  was  unincum- 

bered, and  that  he  himself  was  free  from  debts  and  liabilities. 
(554^^)  Pretence  that  certain  goods  were  unincumbered. 

(555)  Pretence   that   defendant   had  then  purchased  certain  property, 

which  it  was  necessary  he  should  immediately  pay  for. 

(556)  Pretence   that  a  certain  draft  for  $7,700,  drawn  by  a  house   in 

Charleston  on  a  house  in  Boston,  which  the  defendant  exhib- 
ited to  the  prosecutor,  had  been  protested  for  non-payment ; 
that  the  defendant  had  had  his  pocket  cut,  and  his  pocket-book 
containing  $195  stolen  from  it;  that  a  draft  drawn  by  a  per- 
son in  Philadelphia,  which  the  defendant  showed  the  prosecu- 
tor, had  been  received  by  the  defendant  in  exchange  for  the 
protested  draft,  and  that  the  defendant  expected  to  receive  the 
money  on  the  last  mentioned  draft. 

(557)  Pretence   that   a  certain  watch  sold  by  defendant  to  prosecutor 

was  gold. 

(558)  Obtaining  money  by  means  of  a  false  warranty  of  the  weight  of 

goods. 

(559)  Obtaining'  money  by  a  false  warranty  of  goods. 

(560)  Falsely  pretending  that  goods  were  of  a  particular  quality. 

(561)  Pretence  that  a  certain  horse  to  be  sold,  &c.,  was  sound,  and  was 

the  horse  called  "  Charley." 
(562)  Pretence   that   a   horse    and    phajton   were   the   property   of    a 
lady  then    shortly  before   deceased,    and    that   the   horse  was 
kind,  &c. 

(563)  Second  count.     Like  the  first,  except  that  the  offering  for 

sale  was  alleged  to  have  been  by  T.  K.  the  elder,  only. 

(564)  Other  pretence  as  to  the  value  and  history  of  a  horse,  which  the 

prisoners  sold  to  the  prosecutor. 

(565)  Pretence  that  one   J.  P.,  of  the  city  of  Washington,  wanted  to 

buy  some  brandy,  &c.  ;  that  said  J.  P.  kept  a  large  hotel  at 
Washington,  &c. ;  that  defendant  was  sent  by  said  J.  P.  to 
purchase  brandy  as  aforesaid,  and  that  defendant  would  pay 
cash  therefor,  if  prosecutor  would  sell  him  the  same.  First 
count. 

(566)  Second  count.     That  defendant  was  requested  by  one  J.  P., 

who  kept  a  large  hotel  in  Washington  City,  to  purchase 
some  brandy  for   said  J.  P.,  and  that  if  prosecutor  would 

483 


(528)  OFFENCES  AGAINST  PROPERTY. 

sell  defendant  two  half  pipes  of  brandy,  defendant  would 
pay  prosecutor  cash  for  the  same  shortly  after  delivery. 

(567)  Third  count.     That  defendant  had  been  requested   by  one 

J.   P.  to  purchase  for  him  some  brandy,  that  he  (the  said 
J.  P.)  kept  a  large  hotel  in  Baltimore,  &c. 

(568)  Pretence  that   one   of  the   defendants   having    advanced   money 

to  the  other  on  a  deposit  of  certain  title  deeds,  had  himself 
deposited  the  deeds  with  a  friend,  and  that  he  received  a 
sum  of  money  to  redeem  them ;  with  counts  for  conspiracy. 

(56 9)  For  pretending  to  an  attesting  justice  and  a  recruiting  sergeant 

that  defendant  was  not  an  apprentice,  and  thereby  obtaining 
money  to  enlist. 

(570)  For  obtaining  more  than  the  sum  due  for  carriage  of  a  parcel  by 

producing  a  false  ticket. 

(571)  Pretence  that  defendant  had  no  note  protested  for  non-payment, 

that  he  was  solvent,  and  worth  from  nine  to  ten  thousand 
dollars. 

(572)  Obtaining  acceptances  on  drafts,  by  pretence  that  certain  goods 

had  been  purchased  by  defendant  and  were  about  to  be  shipped 
to  prosecutor. 

(573)  Obtaining  acceptances    by  the  pretence  that  defendants  had  cer- 

tain goods  in  storage  subject  to  prosecutor's  order. 

(574)  Receiving  goods  obtained  by  false  pretences,  under  the   English 

statute. 

(528)    Greneral  frame  of  indictment,  (ci) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  devising  and  intending  to 
cheat  and  defraud,  &c.  {stating  party  intended  to  be  defrauded)^ 
of  his  goods,  moneys,  chattels,  and  property,  unlawfully,  know- 
ingly, and  designedly,(a^)  did  then  and  there  falsely  pretend(5) 
to  C.  D.,(c)  that(d')  [setting  out  the  pretence).^  whereas,  in  truth 
and  fact  [negativing  the  pretence)^[e)  as  he,  the  said  A.  B.,  then 
and  there  well  knew  [or^  which  said  pretence  the  said  A.  B. 
then  and  there  well  knew  to  be  false), (/)  by  color(/^)  and 
means(^)  of  which  said  false  pretence  and  pretences,  he,  the  said 
A.  B.,  did  then  and  there  unlawfully,  knowingly,  and  designedly 
obtain(/i)  from  the  said  C.  D.  [stating  the  property  obtained),[i) 
being  then  and  there  the  property  of  the  said  C.  !).,(/)  with  in- 
tent to  cheat  and  defraud  the  said  C.  D.,(^)  to  the  great  damage  |H| 
of  the  said  C.  D.,(Z)  contrary,  &c.  [Conclude  as  in  book  1,  chap- 
ter 3.) 

(<J)  See  Wli.  C.  L.  §2144. 

(ai)  This  essential,  when  in  the  statute.  State  v.  Baggerly,  21  Texas,  757, 

484 


FALSE   PRETENCES.  (528) 

(b)  An  indictment  averring  that  the  defendant  did  "  falsely  and  feloniously 
pretend,"  &c.,  was  held  bad.  R.  v.  Walker,  6  C.  &  P.  657.  In  those  States, 
however,  as  in  New  York,  where  the  ofTence  is  a  felony,  the  averment  is  of 
course  essential.  As  to  "knowingly,"  see  Com.  v.  Hulbert,  12  Mete.  446.  See 
Wh.  C.  L.  §  2144. 

The  word  pretend  is  indispensable,  though  the  word  falsely,  according  to 
the  English  practice  (R.  v.  Airey,  2  East,  R.  31),  is  not  essential,  the  pretences 
being  subsequently  negatived.  It  is  much  safer,  however,  to  insert  it.  See 
Wh.^C.  L.  §  2144. 

(c)  The  pretence  need  not  be  to  the  party  from  whom  the  property  is  ob- 
tained ;  if  made  to  his  agent,  who  communicates  it  to  the  principal,  it  is  suffi- 
cient. Com.  V.  Call,  21  Pick.  515;  Com.  v.  Harley,  7  Met.  462.  And  in  the 
same  case,  it  was  held  that  an  indictment  which  substantially  averred  that  the 
false  pretences  were  practised  on  A.  B.,  and  his  money  obtained  thereby  with 
intent  to  defraud  C.  D.,  was  good.  See  R.  v.  Lara,  1  Leach,  C.  C.  647;  Wh. 
C.  L.  §  2145. 

Where  the  indictment  averred  the  pretences  to  have  been  made  to  a  firm,  it 
is  sufficient  to  show  that  they  were  made  to  one  of  the  firm  (Com.  v.  Mooar, 
Thach.  C.  C.  410)  ;  and,  in  a  leading  case,  the  Supreme  Court  of  Massachusetts 
held,  that  a  false  pretence  made  use  of  to  an  agent,  who  communicates  it  to  his 
principal,  and  who  is  influenced  by  it  to  act,  is  within  the  statute.  Com.  v.  Call, 
21  Pick.  515  ;  Com.  v.  Harley,  7  Met.  462.  See  also  Com.  v.  Bagley,  7  Pick. 
279.  A  false  pretence  made  to  A.  in  B.'s' hearing,  by  which  money  is  obtained 
by  B.,  may  be  laid  as  a  pretence  made  to  B.  R.  v.  Dent,  1  C.  &  K.  249.  And 
it  is  said  that  money  paid  by  an  agent  is  rightfully  laid  as  money  paid  by  a 
principal. 

The  money  of  a  benefit  society  whose  rules  were  not  enrolled,  was  kept  in  a 
box,  of  which  E.,  one  of  the  stewards,  and  two  others,  had  keys  ;  the  defend- 
ant, on  the  false  pretence  that  his  wife  was  dead,  which  pretence  he  made  to  the 
clerk  of  the  society  in  the  hearing  of  E.,  obtained  from  the  hands  of  E.,  out 
of  the  box,  five  pounds  ;  it  was  held,  that  in  an  indictment  the  pretence  might 
be  laid  as  made  to  E.,  and  the  money  as  the  property  of  "  E.  and  others," 
obtained  from  E.     lb. 

((/)  It  is  not  necessary  to  describe  the  pretences  more  particularly  than  they 
were  shown  or  described  to  the  party  at  the  time,  and  in  consequence  of  which 
he  was  imposed  on.  2  East,  P.  C.  c.  18,  s.  13,  p.  837,  838;  Com.  v.  Hulbert,  12 
Met.  446  ;  Wh.  C  L.  §  2148.  It  is  sufficient  to  state  the  efiect  of  the  pretence 
correctly ;  the  very  words  need  not  be  used.  R.  v.  Scott,  cited  in  R.  v.  Parker, 
2  Mood.  C.  C.  R.  1  ;  7  C.  &  P.  825  ;  Wh.  C  L.  §  2153.  But  a  variance  between  the 
indictment  and  the  evidence,  with  regard  to  the  efiect  of  the  pretences,  will  be 
fatal ;  thus,  where  the  indictment  stated  that  the  defendant  pretended  he  had 
paid  a  sum  of  vioneij  into  the  Bank  of  l^ngland,  and  the  evidence  showed  that 
he  had  said,  generally,  that  the  money  had  been  paid  into  the  hank,  Ellenbor- 
ough  C.  J.,  held  the  variance  fatal.  R.  v.  Prestow,  1  Campb.  494;  Wh.  C,  L. 
§  2148. 

When  the  property  is  obtained  by  means  of  a  sale,  the  proper  cours,e  seems 

485 


(528)  OFFENCES  AGAINST  PROPERTY. 

to  be  to  aver  such  fact  specially.  Com.  v.  Strain,  10  Mete.  44G  ;  State  w. 
Philbrick,  31  Maine  (1  Red.),  401.     See  Wh.  C.  L.  §§  2149,  2150. 

But  it  is  not  necessary  to  prove  the  whole  of"  the  pretences  charged ;  proof 
of  part,  and  that  the  property  was  obtained  by  force  of  such  part,  is  enough. 
R.  V.  Hill,  R.  &  R.  190  ;  R.  v.  Ady,  7  C.  &  P.  140.  In  New  York  it  has  been 
held  that  where  one  or  more  of  the  pretences  are  proved  to  be  false,  it  is 
sufficient,  per  se,  to  constitute  the  offence ;  the  accused  may  be  convicted,  not- 
withstanding that  the  other  pretences  in  the  indictment  are  not  proved ;  such 
pretences  being  in  such  case  regarded  as  surplusage.  See  People  v.  Stone,  9 
Wend.  182;  State  v.  Mills,  17  Maine,  211  ;  Com.  v.  Daniels,  2  Pars.  333; 
Britt  V.  State,  9  Humph.  81  ;  Com.  v.  Merritt,  8  Cush.  571 ;  Co  wen  v.  People, 
14  Illinois,  348.  The  same  rule  exists  in  the  analogous  cases  of  perjury  and 
blasphemy.  Ld.  Raym.886;  2  Campb.  138,  139;  Cro.  C.  C.  7th  ed.  662  ;  State 
V.  Hascall,  6  N.  Hamp.  358;  Com.  v.  Kneeland,  20  Pick.  206;  Wh.  C.  L. 
§2148.     (See  next  7inle.) 

An  indictment  stated  that  by  the  rules  of  a  benefit  society  every  free  mem- 
ber was  entitled  to  five  pounds  on  the  death  of  bis  wife,  and  that  the  defend- 
ant falsely  pretended  that  a  paper  which  he  produced  was  genuine,  and  con- 
tained a  true  account  of  his  wife's  death  and  burial,  and  that  ho.  further  falsely 
pretended  that  he  was  entitled  to  five  pounds  from  the  society,  by  virtue  of 
their  rules,  in  consequence  of  the  death  of  his  wife  ;  by  means  of  which  "  last 
mentioned  false  pretence  "  he  obtained  money  ;  it  was  held  good.     R.  v.  Dent, 

1  C.  &  K.  249. 

(e)  It  is  necessary  for  the  pleader  to  negative  specifically  all  the  false  pretences 
relied  on  to  sustain  the  indictment.    Tyler  v.  State,  2  Humph.  37  ;  R.  d.  Perott, 

2  M.  &  S.  379;  Wh.  C.  L.  §  2158.  There  must  be  a  special  averment  that  the 
pretences,  or  some  of  them,  are  false;  and  where  no7ie  of  them  are  negatived,  the 
case  will  be  reversed  on  error.  It  was  held,  in  one  case,  that  if  the  proof  was 
adequate  as  to  the  offence,  though  only  coming  up  to  a  portion  of  the  pretence 
averred  in  the  indictment,  a  conviction  was  good.  R.  v.  Hill,  R.  &  R.  190.  In 
R.  V.  Perott,  the  question  was  thoroughly  examined  by  Ellenborough,  C.  J.,  and 
it  was  remarked  as  a  reason  for  the  rule  above  laid  down,  that  "to  state  merely 
the  whole  of  the  false  pretence,  is  to  state  a  matter  generally  combined  of 
some  truth  as  well  as  falsehood."  Such  is  the  law  in  New  York.  People  v. 
Stone,  9  Wend.  182;  Peojile  v.  Haynes,  11  Wend.  563.  But  it  would  seem  to 
be  safer  to  negative  each  pretence  specifically  in  the  indictment ;  it  being  plain 
that  if  only  one  of  the  assignments  is  well  laid,  and  is  proved  on  trial  to  have 
been  the  moving  cause  of  the  transfer  of  property  from  the  prosecutor  to  the 
defendant,  the  rest  may  be  disregarded.  It  is  difficult  to  say  how  a  court,  on 
demurrer  or  motion  in  arrest  of  judgment,  can  go  behind  the  indictment  and 
say  that  the  particular  assignment,  though  one  among  many,  which  the  pleader 
has  omitted  to  negative,  was  not  the  operative  motive  on  the  prosecutor's  mind. 
In  a  case,  however,  where  one  portion  of  the  assignment  of  fraud  must  neces- 
sarily, from  its  structure,  be  true,  e.  g.  where  the  defendant  pretended  that, 
being  the  servant  of  A.  B.,  he  was  employed  by  him  to  convey  goods  to  the 
defendant,  for  the  carrying  of  which  porterage  was  charged,  and  where  the  fact 

486 


I 


FALSE   PRETENCES.  (528) 

was  that  the  defendant  ivas  a  servant  of  A.  B.,  but  was  not  employed  by  him 
to  carry  the  goods  in  question,  it  is,  of  course,  only  necessary  to  negative 
what  is  in  fact  the  false  pretence  used.     Wh.  C.  L.  §  2158. 

(/)  It  is  always  prudent  to  allege  a  acienter,  and  it  is  necessary  so  to  do, 
unless  the  pretences  stated  are  of  such  a  nature  as  to  exclude  the  possible 
hypothesis  of  the  defendant  not  knowing  of  their  falsity.  R.  r.  Philpotts,  1  C. 
&  K.  112.  See  also  Com.  v.  Speer,  3  Va.  Cases  65  ;  Wh.  C.  L.  §§  297,  2159. 
A  contrary  opinion,  it  is  true,  is  expressed  by  the  Supreme  Court  of  Massachu- 
setts (Com.  V.  Hulbert,  12  Mete.  446),  and  is  sustained  by  Judge  Parsons,  in 
Com.  V.  Blunienthal,  Philadelphia,  1846,  to  a  manuscript  copy  of  which  I  have 
had  the  opportunity  to  refer. 

"  But  it  has  been  further  contended  that  an  indictment  for  this  offence  should 
always  aver  the  scienter,  that  the  accused  made  the  representations  charged 
in  the  bill  knowing  them  to  be  false ;  for,  non  constat,  but  that  in  a  case  like  the 
present,  where  a  defendant  is  charged  with  having  made  a  representation  as 
to  his  means,  solvency,  and  ability  to  pay,  he  might  not  have  known  of  the 
true  condition  of  his  affairs,  and  if  such  was  the  case,  he  would  be  guilty  of 
no  offence.  It  seems  to  me,  however,  there  might  be  two  answers  given  to 
this  argument,  without  resorting  to  authority.  In  the  first  place  there  is  noth- 
ing said  of  the  scienter  in  the  statute,  unless  we  take  it  from  the  words  'intent' 
and  '  designedly,'  and  we  have  already  given  an  understanding  of  them.  And 
in  the  second  place,  where  the  charge  on  the  record  is,  that  the  intention  was 
to  cheat  and  defraud,  the  fact  that  the  accused  made  a  statement  of  his  means 
and  ability,  which  he  honestly  believed  was  true,  but  in  fact  was  mistaken,  it 
would  be  matter  of  proof  by  him  to  rebut  the  assertion  upon  the  record  that 
his  intention  was  to  cheat,  and  the  further  averment  that  the  representation  was 
false. 

"  To  sustain  his  position  the  learned  counsel  has  cited  a  number  of  respecta- 
ble English  authorities  where  it  was  ruled  that  in  consequence  of  the  scienter 
not  being  averred  in  the  bill,  the  indictment  was  held  bad.  But  I  think  on  an 
examination  of  the  forms  of  most  of  the  English  pleaders  as  given  in  the 
elementary  writers,  and  the  decisions  on  this  point,  the  scienter  has  been  re- 
quired to  be  averred  only  where  the  statute  under  which  the  party  was  in- 
dicted contained  that  as  one  of  its  provisions,  or  where,  from  the  character  of  the 
offence,  it  was  necessary  to  state  in  the  indictment  the  material  facts  and  cir- 
cumstances which  the  public  prosecutor  was  bound  to  prove,  in  order  to  make 
the  act  criminal. 

"  The  first  section  of  the  act  of  the  30  Geo.  II.  c.  26,  is  in  these  words  : 
'That  all  persons  who  knowincjJy  and  designedly,  by  false  pretence  or  pretences, 
shall  obtain  from  any  person  or  persons  money,  goods,  wares,  and  merchandise, 
with  intent  to  cheat  and  defraud  any  person  or  persons  of  the  same,'  &c.  It 
will  be  found  by  a  reference  to  the  forms  given  by  Mr.  Chitty,  of  indictments 
under  this  statute,  the  scienter  is  averred.  The  fifty-third  section  of  the  7  & 
8  Geo.  IV.  c.  29,  is  as  follows:  'If  any  person  shall  by  any  fiilse  pretence 
obtain  from  any  other  person  any  chattels,  money,  or  valuable  security  with 
intent  to  cheat  or  defraud  any  person  of  the  same,'  &c.     Now  I  observe  that  in 

487 


(528)  OFFENCES  AGAINST  PROPERTY. 

indictments  under  this  statute  the  scienter  is  not  always  averred,  and  does  not 
seem  to  be  necessary,  except  in  those  cases  where,  from  the  facts  in  the  case,  it 
was  material  in  order  to  constitute  the  offence ;  and  without  an  averment  that 
the  accused  knew  of  the  falsity  of  the  means  alleged  to  have  been  used,  there 
would  have  been  no  crime  ;  and  such  I  am  certain  was  the  case  of  the  Queen  v. 
Wickham  (10  A.  &  E.  38),  where  the  offence  charged  was  in  relation  to  a  prom- 
issory note,  and  the  repi'esentations  made  about  the  same,  when  it  was  material 
to  aver  and  prove  that  the  prisoner  kncAv  that  the  note  for  twenty-one  pounds 
was  not  a  good  and  valuable  security.  And  not  unlike  it  is  the  case  of  the 
Queen  v.  Henderson  (1  C.  &  M.  330),  where  it  was  also,  from  the  nature  of  the 
offetice  charged,  material  to  show  that  the  prisoner  knew  that  the  allegation 
was  false,  for,  from  the  nature  of  the  assertion  set  forth,  the  legitimate  inference 
was  that  it  was  true. 

"  But  in  the  case  before  us  the  averment  of  the  false  statement  is  one  alleged 
to  have  been  made  with  regard  to  the  prisoner's  own  affairs,  where,  from  the 
nature  of  the  assertion,  the  inference  is  inevitable  that  he  knew  whether  what 
he  was  stating  was  true  or  Mse,  and  on  proof  of  its  falsity,  his  guilt  might  be 
legitimately  infci-red,  unless  by  countervailing  testimony  he  can  show  that  he 
was  innocently  mistaken  in  the  repi-esentations  he  made.  Therefore  it  is  not  a 
material  fact  which  the  prosecution  are  bound  to  state  in  the  indictment,  or 
prove  on  the  trial,  in  order  to  bring  the  case  within  the  act  of  1842.  If  the 
accused  could  show  to  the  satisfaction  of  a  jury,  that  he  did  not  knoio  that  his 
asseveration  of  facts  relating  to  his  condition  was  untrue,  it  perhaps  might 
avail  him  as  a  defence  to  the  allegation  in  the  bill,  of  an  intention  to  cheat  and 
defraud,  for  that  is  the  essence  of  the  charge. 

"  The  second  cause  assigned  for  the  demurrer  is,  that  the  offence  set  forth  in 
the  bill  is  not  a  crime  under  the  laws  of  this  State.  In  my  opinion  this  case 
comes  within  the  principles  laid  down  by  this  court  in  Com.  v.  Poulson  (6  L.  J. 
272),  and  that  case  must  be  considered  the  law  in  this  county  until  it  is  re- 
versed by  a  higher  tribunal. 

"  The  indictment  charges  that  the  prisoner  did  falsely  pretend  that  he  and 
his  brother  Alexander,  trading  as  Blumenthal  and  Brother,  were  then  doing  an 
excellent  and  profitable  business  at  Norfolk,  Virginia,  and  that  they  were  per- 
fectly solvent  and  prosperous.  Now  when  we  have  it  admitted  upon  the  record 
that  this  representation  was  made  'devising  and  intending'  to  cheat  and  defraud 
the  prosecutors  out  of  their  property,  that  the  lohole  was  false  and  untrue,  that 
by  color  and  means  of  said  false  pretence,  they  obtained  the  goods  mentioned 
in  the  bill,  with  an  intent  to  cheat  and  defraud  the  prosecutors  and  to  their 
damage,  it  seems  to  me  that  it  is  a  pretence  within  the  meaning  of  the  statute, 
and  to  hold  any  different  rule  would  tend  to  increase  the  frauds  against  which 
the  act  intended  to  guard.  When  we  are  told  by  the  Supreme  Court,  '  It  is 
certain  that  a  fraudulent  misrepresentation  of  a  party's  means  and  resources  is 
within  the  English  statutes,  and  a  fortiori,  within  our  own,'  it  seems  to  me  such 
a  false  statement  is  a  crime,  when  made  with  an  intention  to  cheat  and  defraud 
a  party  out  of  his  goods. 

"I  have,  after  mature  reflection,  seen  no  reason  for  not  retaining  the  rule  laid 

488     • 


*•  FALSE  PRETENCES.  (529) 

(529)  Form  used  in  Massachusetts. 
That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  being  a  person  of  an  evil 
disposition,  and  devising  and  intending  by  unlawful  ways  and 
means  to  obtain  and  get  into  his  hands  and  possession  the  goods, 
merchandise,  chattels,  and  effects  of  the  honest  and  good  citizens 
of  this  commonwealth,  and  with  intent  to  cheat  and  defraud  C. 

down  in  the  case  of  Ponlson ;  that  opinion  was  formed  after  a  thorough  exam- 
ination of  the  law,  and  was  the  determination  of  the  whole  court,  and  one  by 
which  we  are  all  bound  until  reversed ;  nor  shall  I  attempt  in  any  case  to  avoid 
giving  full  effect  to  the  law  as  therein  settled.  As  I  view  the  present  record, 
there  can  be  no  doubt  that  this  court  would  be  justified  in  pronouncing  sentence 
upon  the  prisoner.  He  is  fully  apprised  of  all  he  has  to  answer,  and  after  ad- 
mitting all  which  is  stated  to  be  true,  there  can  be  no  question  but  that  such 
acts  arc  a  violation  of  the  law.  Hence  judgment  must  be  entered  in  favor  of 
the  commonwealth  on  the  demurrer,  unless  it  is  withdrawn." 

This  is  all  very  vigorous  and  true,  and  though,  as  before  mentioned,  it  is  pru- 
dent to  insert  the  scienter  in  all  cases,  it  can  hardly  be  held  necessary  in  in- 
stances in  which,  like  that  just  noticed,  the  defendant  must  necessarily  have 
been  conscious  of  the  falsity  of  his  own  statement. 

(/I)   "  Color  "  alone  is  bad.     State  v.  Chunn,  19  Mo.  233. 

(gr)  To  omit  to  aver  that  it  was  by  means  of  the  pretences  as  laid  that  the 
property  was  obtained,  is  fatal.  E,.  v.  Airey,  2  East,  30;  Wh.  C.  L.  §  2162. 
See  State  v.  Kube,  20  Wis.  217. 

(/i)  The  "obtaining"  must  be  alleged  in  name.  State  v.  Bacon,  7  Vt.  219; 
Wh.  C.  L.  §  2162. 

(J)  It  is  generally  necessary  that  the  property  obtained  should  be  described 
with  the  same  accuracy  as  in  larceny.  Com.  v.  Morrell,  8  Cush.  571  ;  State  v. 
Kube,  20  Wis.  217  ;  Wh.  C.  L.  §§  354-363,  2155.  Where  a  signature  to  a  note 
has  been  obtained  by  false  pretences,  and  the  party  defrauded  has  been  obliged 
to  pay  the  note,  it  is  enough  to  charge  the  sum  paid  to  have  been  obtained,  &c., 
without  setting  forth  the  obtaining  of  the  signature.  People  v.  Herrick,  13 
Wend.  87.  And  it  is  enough  to  say  "  —  dollars  of  the  money  and  property  of 
A.  B.,"  without  stating  whether  this  money  was  in  bank  notes,  specie,  &c.  Com. 
V.  Lincoln,  11  Allen  (Mass.),  233. 

(y)  The  indictment  must  state  the  goods  to  be  the  property  of  some  person 
named,  and  where  no  owner  is  laid,  the  indictment  will  be  quashed.  R.  v. 
Parker,  3  A.  &  E.  292  ;  R.  i;.  Norton,  8  C.  &  P.  196  ;  State  v.  Lathrop,  15  Vt. 
R.  279 ;  R.  V.  Martin,  8  A.  &  E.  481  ;  3  N.  &  P.  472  ;  Sill  v.  R.  16  Eng.  Lavr 
&Eq.  375;   Wh.  C.  L.  §  2155. 

Distinct  counts  may  lay  distinct  ownerships.     Oliver  v.  State,  37  Ala.  134. 

(fc)  This  is  essential  under  the  statutes.     See  Wh.  C.  L.  §  2159. 

(/)  It  is  not  necessary,  as  it  has  been  laid  down  in  New  York  and  Massachu- 
setts, to  aver  damage  to  the  prosecutor.  People  v.  Genung,  11  Wend.  18;  Com- 
V.  Wilgus,  4  Pick.  177. 

489 


(530)  OFFENCES  AGAINST  PROPERTY.  * 

D.,  &c.,  did  then  and  there  unlawfully,  knowingly,  and  design- 
edly, falsely  pretend  and  represent  to  said  C.  D.  (stating-  pre- 
tences) ;  and  the  said  C.  D.  then  and  there  believing  the  said 
false  pretences  and  representations,  so  made  as  aforesaid  by  the 
said  A.  B.,  and  being  deceived  thereby,  was  induced,  by  reason  of 
the  false  pretences  and  representations  so  made  as  aforesaid,  to 
deliver,  and  did  then  and  there  deliver,  to  the  said  A.  B.  [stating- 
goods)^  of  the  proper  goods,  merchandise,  chattels,  and  effects  of 
said  C.  D.,  and  the  said  A.  B.  did  then  and  there  receive  and 
obtain  the  said  goods,  merchandise,  chattels,  and  effects  of  the 
said  C.  D.,  by  means  of  the  false  pretences  and  representations 
aforesaid,  and  with  intent  to  cheat  and  defraud  the  said  C.  D.  of 
the  same  goods  and  merchandise,  chattels,  and  effects ;  whereas, 
in  truth  and  in  fact  [negativing  the  pretences)  ;  and  so  the  jurors 
aforesaid,  upon  their  oaths  aforesaid,  do  say,  that  the  said  A.  B., 
by  means  of  the  false  pretences  aforesaid,  on,  &c.,  at,  &c.,  un- 
lawfully, knowingly,  and  designedly  did  receive  and  obtain  from 
said  C.  D.  the  said  goods,  merchandise,  chattels,  and  effects,  of 
the  proper  goods,  merchandise,  chattels,  and  effects  of  the  said 
C.  D.,  with  intent  to  defraud  C.  D.  of  the  same,  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(530)  Same  i?i  New  York. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  being  a  person  of  an  evil 
disposition,  ill-name  and  fame,  and  of  dishonest  conversation, 
and  devising  and  intending,  by  unlawful  ways  and  means,  to 
obtain  and  get  into  his  hands  and  possession  the  moneys,  val- 
uable things,  goods,  chattels,  personal  property,  and  effects  of  the 
honest  and  good  people  of  the  State  of  New  York,  to  maintain 
his  idle  and  profligate  course  of  life,  on,  &c.,  at,  &:c.,  with  intent 
feloniously  to  cheat  and  defraud  one  C.  D.,  did  then  and  there 
feloniously,  unlawfully,  knowingly,  and  designedly,  falsely  pre- 
tend and  represent  to  the  said  C.  D.,  that  [stating  the  jnrtences)', 
and  the  said  C.  J),  then  and  there  believing  the  said  false  pre- 
tences and  representations,  so  made  as  aforesaid  by  the  said  A. 
B.,  and  being  deceived  thereby,  was  induced,  by  reason  of  the 
false  pretences  and  representations  so  made  as  aforesaid,  to 
deliver,  and  did  then  and  there  deliver,  to  the  said  A.  B.  [stating 
goods),  of  the  proper  moneys,  valuable  things,  goods,  chattels, 
490 


FALSE   PRETENCES.  (531) 

personal  property  and  effects  of  the  said  C.  D.,  and  the  said  A. 
B.  did  then  and  there  designedly  receive  and  obtain  the  said,  &c., 
of  the  said  C.  D.,  of  the  proper  moneys,  valuable  things,  goods, 
chattels,  personal  property,  and  effects  of  the  said  C.  D.,  by  means 
of  the  false  pretences  and  representations  aforesaid,  and  with 
intent  feloniously  to  cheat  and  defraud  the  said  C.  D.  of  the  said, 
&c.,  whereas,  in  truth  and  in  fact,  the  said  {negativing  pre- 
tences) ;  and  whereas,  in  fact  and  in  truth,  the  pretences  and 
representations,  &c.,  so  made  as  aforesaid,  by  the  said  A.  B.  to 
the  said  C.  D.,  was  and  were  in  all  respects  utterly  false  and 
untrue,  to  wit,  on  the  day  and  year  last  aforesaid,  at  the  ward, 
city,  and  county  aforesaid;  and  whereas,  in  fact  and  in  truth, 
the  said  A.  B.  well  knew  the  said  pretences  and  representations, 
so  by  him  made  as  aforesaid  to  the  said  C.  D.,  to  be  utterly  false 
and  untrue  at  the  time  of  making  the  same. 

And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  A.  B.,  by  means  of  the  false  pretences  aforesaid,  on 
the  day  and  year  last  aforesaid,  at  the  ward,  city,  and  county 
aforesaid,  feloniously,  unlawfully,  falsely,  knowingly,  and  design- 
edly did  receive  and  obtain  from  the  said  C.  D.,  of  the  proper 
moneys,  valuable  things,  goods,  chattels,  personal  property,  and 
effects  of  the  said  C.  D.,  with  intent  feloniously  to  cheat  and  de- 
fraud C.  D.  of  the  same,  against,  &c.  [Conclude  as  in  book  1, 
chapter  3.) 

(531)  Pretence  that  defendant  was  agent  of  a  lottery^  ^^c.(m) 

That  A.  W.  W.,  &c.,  on,  &c.,  at,  &c.,  being  a  wicked  and  evil 
disposed  person,  and  a  common  cheat,  and  contriving  and  in- 
tending fraudulently  and  deceitfully  to  cheat  and  defraud  one  E. 
H.  of  his  moneys  and  property,  on,  &c.,  falsely  and  fraudulently 
did  knowingly  and  designedly  pretend  to  the  said  E.  H.  that  his 
name  was  H.  C,  that  he  was  an  agent  for  the  managers  of  a 
certain  lottery,  called  The  Maryland  Grand  State  Lottery,  and 
that  he  had  a  number  of  quarters  of  tickets  in  said  lottery,  and 
then  and  there  exhibited  a  great  number  of  quarters  of  tickets  in 
said  lottery,  signed  H.  C,  with  the  numbers  of  the  original  tick- 
ets in  said  lottery  written  therein,  and  then  and  there  falsely  and 
fraudulently  did  knowingly  and  designedly  pretend  that  the  said 

(m)  See  Com.  v.  Wilgus,  4  Pick.  177,  where  this  count  was  held  good. 

491 


(532)  OFFENCES  AGAINST  PROPERTY. 

quarters  of  tickets  were  true  and  genuine,  and  that  he  had  the 
original  tickets  corresponding  with  the  numbers  of  the  said  quar- 
ters of  tickets  then  deposited  in  a  bank  in  Boston,  whereas,  in 
truth  and  in  fact,  his  true  name  was  A.  W.  W.,  and  not  H.  C, 
as  he  falsely  pretended,  and  in  truth  and  in  fact  he  was  not,  and 
never  was  an  agent  for  the  managers  of  the  lottery  called  The 
Maryland  Grand  State  Lottery,  and  the  said  quarters  of  tickets 
so  exhibited  by  the  said  A.  W.  W.  were  not  genuine  parts  of 
original  tickets  in  said  lottery,  but  were  spurious  and  fabricated 
for  the  sole  purpose  to  deceive,  defraud,  and  injure,  and  he  had 
not  and  never  had  in  his  possession,  nor  deposited  in  any  bank 
the  original  and  genuine  tickets  corresponding  to  the  numbers 
of  said  quarters  of  tickets  so  exhibited  to  the  said  E.  H.  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  A.  W.  W.,  on  the  day  and  year  last  aforesaid,  at 
said  Cambridge,  in  the  county  aforesaid,  by  the  false  tokens  and 
pretences  aforesaid,  falsely  and  fraudulently  did  knowingly  and 
designedly  obtain  and  get  into  his  possession  from  the  said  E. 
H.  fifteen  dollars,  of  the  moneys  and  property  of  the  said  E.  H., 
with  the  intent  him  the  said  E.  H.  then  and  there  to  cheat  and 
defraud  of  the  same,  to  the  great  damage  of  the  said  E.  H.,  in 
evil  example  to  others  in  like  case  to  offend,  against,  &c.,  and 
contrary,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(532)    Obtaining  money  by  personating  another. 

The  jurors,  &c.,  upon  their  oath  present,  that  A.  B.,  late  of  B., 
in  the  County  of  S.,  laborer,  on  the  first  day  of  June,  in  the 
year  of  our  Lord  at  B.  aforesaid,  in  the  county  aforesaid, 

unlawfully,  knowingly,  and  designedly  did  falsely  pretend  to  E., 
the  wife  of  C.  D.,  that  the  said  A.  B.  was  F.  G.,  and  that  he 
was  the  same  person  that  had  cured  H.  I. ;  by  means  of  which 
said  false  pretences  the  said  A.  B.  did  then  and  there  unlawfully, 
knowingly,  and  designedly  obtain  from  the  said  E.  the  sum  of 
five  dollars,  of  the  money  of  the  said  C.  D.,  with  intent  then  and 
there  to  cheat  and  defraud  the  said  C.  D.  of  the  same ;  whereas, 
in  truth  and  in  fact,  the  said  A.  B.  was  not  F.  G.  ;  and  whereas, 
in  truth  and  in  fact,  the  said  A.  B.  was  not  the  same  person 
that  had  cured  H.  L,  as  the  said  A.  B.  then  and  there'well  knew, 
492 


FALSE  PRETENCES.  (534) 

contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, &c. 

(533)  Pretence  that  defendant  ivas  M.  II.,  who  had  cured  Mrs.  0. 
at  the  Oxford  Infirmary,  whereby  he  induced  the  prosecutor 
to  buy  a  bottle  of  ointment,  ^c,  for  which  he  received  a  sov- 
ereign, giving  15s.  in  change.(n) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  did  unlawfully  and  falsely, 
knowingly  and  designedly  pretend  to  one  C,  the  Vv^ife  of  G.  P., 
that  he,  the  said  A.  B.,  was  M.  H.,  and  that  he  was  the  same 
person  that  had  cured  Mrs.  C.  at  the  Oxford  Infirmary  ;  by  means 
of  which  said  false  pretence,  he  the  said  A.  B.  did  then  and  there 
obtain  from  the  said  G.  P.,  the  husband  of  the  said  C.  P.,  one 
piece  of  the  current  gold  coin  of  this  realm,  called  a  sovereign, 
of  the  moneys,  goods,  and  chattels  of  the  said  G.  P.,  with  intent 
then  and  there  to  cheat  and  defraud  him,  the  said  G.  P.,  of  the 
sum  of  five  shillings,  parcel  of  the  value  of  the  said  last  men- 
tioned piece  of  the  current  gold  coin,  whereas,  in  truth  and  in 
fact,  &c.  [negativing  the  false  pretences,  and  proceeding  as  in 
general  frame). 

(534)  Against  a  member  of  a  benefit  club  or  society,  for  obtaining 
money  belonging  to  the  rest  of  the  members,  under  false  pre- 
tences.(j)) 

That  on,  &c.,  at,  &c.,  certain  persons  united  together  and 
formed  themselves  into  a  certain  lawful  and  beneficial  club  or 
society,  called,  &c.  [as  the  name  may  be),  under  certain  printed 
articles,  rules,  orders,  or  regulations,  made  for  the  good  order  and 
government  of  the  said  club  or  society  (which  said  articles,  rules, 
&c.,  were  afterwards,  to  wit,  at  the  General  Quarter  Sessions  of 
the  Peace,  holdeii  at  in  the  county  of  aforesaid,  duly 

exhibited,  confirmed,  and  filed,  according  to  the  statute  in  such 
case  made  and  provided),  and  then  and  there,  and  on  divers  other 
days  and  times,  between  that  day  and  the  third  of  May,  in  the 
twenty-ninth  year,  &c.,  contributed  and  paid  divers  large  sums 
of  money,  amounting  in  the  whole  to  a  large  sum  of  money,  to 

(n)  R.  V.  Bloomfield,  1  C.  &  M.  537.     The  defendant  was  convicted  before 
Cresswell,  J.,  at  the  sessions,  and  sentence  passed. 
(o)  Dickinson's  Q.  S,  6th  ed.  336. 

493 


(534)  OFFENCES  AGAINST  PROPERTY. 

wit,  the  sum  of  one  hundred  pounds  and  upwards,  of  lawful 
money,  into  the  said  club  or  society,  and  deposited  the  same  in  a 
certain  box,  left  in  the  dwelling-house  of  one  T.  R.,  at  K.  afore- 
said, commonly  called  or  known  by  the  name  or  sign  of,  &c.  {as 
it  may  be),  and  there  kept  for  the  use,  benefit,  and  advantage  of 
the  members  of  the  said  club  or  society  at  the  time  being.  And 
the  jurors,  &c.,  do  further  present,  that  in  and  by  a  certain  article 
of  the  said  rules  and  orders  of  the  said  club  or  society,  it  is  de- 
clared, ordered,  and  agreed  that,  &c.  {here  recite  the  article  relat- 
ing- to  the  payment  of  money  towards  the  funerals  of  the  members^ 
wives).  And  the  jurors,  &c.,  that  on  the  same  day  and  year  last 
aforesaid,  at,  &c.,  aforesaid,  one  L.  P.,  late  of,  &c.,  one  A.  B.,  and 
one  C.  D.,  &c.  {here  insert  the  rest  of  the  members^  names  which 
appear  by  the  club  book  to  be  existing-  at  this  time),  were  members 
of  the  said  club  or  society,  contributing  and  paying  money  into 
and  for  the  use  of  the  said  club  or  society,  that  is  to  say,  for  the 
general  benefit  and  advantage  of  all  members  thereof,  at  the  said 
house  of  the  said  T.  E,.,  for  the  purpose,  amongst  other  things, 
mentioned,  declared,  and  contained  in  the  said  article  above  men- 
tioned and  set  forth.  And  the  jurors,  &c.,  do  further  present, 
that  on,  &c.,  last  aforesaid,  at,  &c.,  aforesaid,  a  large  sum  of 
money,  to  wit,  the  sum  of  one  hundred  pounds  {this  need  not  be 
the  exact  sum,  let  it  be  something  under  the  sum  contained  in  the 
box  at  this  time),  of  like  lawful  money,  was  and  remained  in  the 
said  box,  kept  for  the  purpose  in  that  behalf  aforesaid,  in  the  said 
house  of  the  said  T.  R.,  there  before  then  deposited  therein,  by 
and  for  and  on  behalf  of  all  the  members  of  the  said  club  or 
society.  And  the  jurors,  &c.,  do  further  present,  that  by  the 
assent  and  concurrence  of  all  the  members  of  the  said  club  or 
society,  it  had  been  usual  and  customary  during  all  the  time 
aforesaid  (except  the  nights  on  which  the  said  club  or  society 
had  been  there  holden)  for  the  members  of  the  society,  having  a 
right  or  occasion  to  withdraw,  or  receive  any  money  to  which 
they  had  been  entitled  by  the  articles,  rules,  and  orders  of  the 
said  club  or  society,  from  and  out  of  the  said  box,  to  apply  to 
the  said  T.  R.  for  the  payment  of  the  same,  upon  condition  that 
he  the  said  T.  R.  should  be  repaid  the  same  from  and  out  of  such 
money  contained  in  the  said  box,  for  the  purpose  in  that  behalf 
aforesaid,  on  some  subsequent  night  on  which  the  said  club  or 
494 


FALSE  PRETENCES.  (535) 

society  should  be  holden  at  the  said  house  of  him  the  said  T.  R., 
at  K.  aforesaid.  And  the  jurors,  &c.,  that  the  said  L.  P.,  so 
being  such  member  as  aforesaid,  and  well  knowing  all  and 
singular  the  premises  aforesaid,  on,  &c.,  at,  &c.,  aforesaid,  un- 
lawfully, knowingly,  and  designedly  did  falsely  pretend  to  the 
said  T.  R.  that  the  wife  of  him  the  said  L.  P.  was  then  dead,  and 
that  he  the  said  L.  P.  then  wanted  thirty  shillings  to  bury  his 
said  wife,  by  means  of  which  said  false  pretences  he  the  said  L. 
P.  then  and  there  unlawfully,  knowingly,  and  designedly  did 
obtain  of  and  from  the  said  T.  R.  the  said  sum  of  thirty  shillings, 
with  intent  then  and  there  to  cheat  and  defraud  the  said  A.  B., 
C.  I).,  &c.  [the  other  members  of  the  club),  of  the  same,  whereas, 
in  truth  and  in  fact,  the  wife  of  him  the  said  L.  P.  was  not  dead 
at  the  said  time  he  so  made  the  false  pretences  to  the  said  T.  R. 
as  aforesaid ;  and  whereas,  in  truth  and  in  fact,  he  the  said  L. 
P.,  at  the  time  of  the  false  pretences,  did  not  want  the  said  sum 
of  thirty  shillings,  or  any  sum  of  money  whatsoever,  for  the  pur- 
pose of  burying  his  wife,  or  of  any  person  whatsoever,  having 
been  the  wife  of  him  the  said  L.  P.,  against,  iSic,  and  against, 
&c.     [Conclude  as  in  book  1,  chapter '6.) 

(535)  Another  form  for  sa7ne,  coupled  with  the  production  to  the 
society  of  a  false  certificate  of  burial.  First  count.  (^In  sub- 
stance.') (^p^ 

That  R.  D.,  &c.,  on,  &c.,  at,  &c.,  unlawfully  did  falsely  pre- 
tend to  F.  E.  that  the  wife  of  him  the  said  R.  T>.  was  then  dead. 
By  means  of  which  he  obtained  from  the  said  F.  E.  silver  coin 
to  the  amount  of  three  pounds  fifteen  shillings,  of  the  moneys  of 
the  said  F.  E.,  with  intent  to  defraud  F.  E.,  whereas,  in  truth 

(p)  R.  V.  Dent,  1  C.  &  K.  249.  After  a  conviction  on  this  indictment,  a  motion 
for  an-est  of  judgment  was  refused.  It  appeared  that  the  money  of  a  benefit 
society,  whose  rules  were  not  enrolled,  was  kept  in  a  box,  of  which  E.,  one  of 
the  stewards,  and'  two  others  had  keys.  The  defendant,  on  the  false  pretence 
that  his  wife  was  dead,  which  pretence  he  made  to  the  clerk  of  the  society  in  the 
hearing  of  E.,  obtained  from  the  hands  of  E.,  out  of  the  box,  £5.  It  was  held, 
that  in  an  indictment  the  pretence  might  be  laid  as  made  to  E.,  and  the  money, 
the  property  of  "  E.  and  others,"  obtained  from  E.  The  first  count  describes 
the  wife  of  the  defendant,  and  the  third  count  mentions  "  the  said  wife  "  of 
the  defendant.  It  was  ruled,  that  the  third  count  sufficiently  refci-red  to  the 
person  mentioned  as  his  wife  in  the  first  count. 

495 


(635)  OFFENCES  AGAINST  PROPERTY. 

and  in  fact,  the  said  wife  of  the  said  E.,  D.  was  not  then  dead, 
as  he  the  said  R.  D.  then  well  knew,  &c. 

(^The  second  count  was  similar^  only  adding  all  through  it  the 
words  "  and  others  "  after  the  name  of  F.  -£/.) 

Third  count.     {In  full.') 

That  before  and  at  the  time  of  the  committing  of  the  offence 
in  this  count  mentioned,  to  wit,  &C.5  there  was  a  certain  friendly 
society,  commonly  called  "  The  George  and  Dragon  Friendly 
Society,"  and  that  the  said  E,.  D.  was  then  and  there  a  free  mem- 
ber of  the  said  society,  and  that  by  the  rules  of  the  said  society 
it  was  amongst  other  things  provided,  that  when  any  free  mem- 
ber's wife  dies,  such  member  shall  be  allowed  five  pounds  out  of 
the  society's  stock,  to  wit,  at,  &c. 

That  before  and  at  the  time  of  the  committing  the  offence  in 
this  count  mentioned,  to  wit,  &c.,  the  said  F.  E.  was  one  of  the 
stewards  of  the  said  society. 

That  the  said  R.  D.,  being  such  member  of  the  said  society  as 
aforesaid,  &c.,  on,  &c.,  at,  &c.,  did  produce  to  the  said  F.  E.,  so 
being  such  steward  as  aforesaid,  a  certain  paper  writing  directed 
to  one  G.  H.  S.  G.,  near  Bristol,  paid  ;  and  which  said  paper 
writing  then  was  in  the  words  and  figures  following,  that  is  to 
say:  — 

"  London,  November  the  8th,  1843. 

"  Sir:  I  received  your  letter  this  morning,  and  was  sorry  to 
state  that  we  did  not  send  tlie  particulars  to  yon  in  the  last  letter 
we  sent.  She  (meaning  the  said  wife  of  the  said  R.  D.)  died 
October  18th,  and  was  buried  on  Monday,  23d,  at  the  Baptis 
(meaning  Baptist)  Chappell,  in  New  Pye  Street,  Westminster, 
London.  I  hope  this  will  find  you  in  perfect  health,  as  it  leaves 
us  all  at  present.  So  I  conclude,  with  kind  love  to  you  and  all 
her  inquiring  friends.     Please  to  deliver  this  to  Mr.  R.  D. 

"  This  is  to  certify  that  I,  T.  H.  N.,  atended  (meaning  at- 
tended) the  funeral  of  M.  D.,  on  the  23d  day  of  October,  being 
the  minister  of  the  Baptist  Chappell,  in  New  Pie  Street,  West- 
minster, London." 

That  the  said  R.  D.,  so  being  such  free  member  of  the  society 
as  aforesaid,  then  and  there  unlawfully,  knowingly,  and  design- 

4yb 


FALSE  PRETENCES.  (535) 

edly  did  falsely  pretend  to  the  said  F,  E.,  so  being  such  steward 
of  the  said  society  as  aforesaid,  that  the  said  paper  writing  was 
a  true,  correct,  and  genuine  paper  writing,  and  that  the  same 
contained  a  true,  correct,  and  genuine  account  of  the  death  of 
the  said  wife  of  the  said  R.  D.,  and  of  her  burial  at  the  Baptist 
Chapel,  in  New  Pye  Street,  Westminster,  Tiondon ;  and  that  the 
said  R.  D.,  so  being  such  free  member  as  aforesaid,  did  then  and 
there  farther  unlawfully,  knowingly,  and  designedly  falsely  pre- 
tend to  the  said  F.  E.,  so  being  such  steward  of  the  said  society 
as  aforesaid,  that  the  said  wife  of  the  said  R.  D.  was  then  dead, 
and  that  he  the  said  R.  D.,  as  such  free  member  as  aforesaid,  was 
then  and  there  entitled  to  receive  from  the  stewards  of  the  said 
society  the  sum  of  five  pounds,  under  and  by  virtue  of  the  rules 
of  said  society,  in  consequence  of  the  death  of  his  said  wife. 
By  means  of  which  said  last  mentioned  false  pretence  the  said 
R.  D.  did  then  and  there  unlawfully  obtain  from  the  said  F.  E. 
two  pieces  of  the  current  silver  coin  of  this  realm,  called  crowns 
{describing'  silver  and  copper  coins  to  the  amount  of  three,  pounds 
fifteen  shillings),  of  the  moneys  of  the  said  F.  E.  and  others, 
with  intent  then  and  there  to  cheat  and  defraud  the  said  F.  E. 
and  others  of  the  same ;  whereas,  in  truth  and  in  fact,  the  said 
paper  writing  was  not  a  true,  correct,  or  genuine  paper  writing; 
and  whereas,  in  truth  and  in  fact,  the  said  paper  did  not  contain 
a  true,  correct,  or  genuine  account  of  the  death  of  the  said  wife 
of  the  said  R.  D.,  or  of  her  burial  at  the  Baptist  Chapel,  New 
Pye  Street,  Westminster,  London ;  and  whereas,  in  truth  and  in 
fact,  the  said  wife  of  the  said  R.  D.  was  not  then  dead ;  and 
whereas,  in  truth  and  in  fact,  the  said  R.  D.,  as  such  free  mem- 
ber as  aforesaid,  was  not  then  entitled  to  receive  from  the  stew- 
ards of  the  said  society  the  sum  of  five  pounds,  or  any  other 
sum  whatever,  under  and  by  virtue  of  the  said  rules  of  the  said 
society,  in  consequence  of  the  death  of  his  said  wife. 

That  the  said  R.  D.  well  knew,  at  the  time  when  he  did  so 
falsely  pretend  as  last  aforesaid,  that  each  and  every  of  the  said 
pretences  were  false,  to  wit,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  against,  &c.,  and  against,  &c.  ( Conclude  as  in  book  1, 
chapter  3.) 

VOL.  I.  —32  49y 


(537)  OFFENCES  AGAINST  PROPERTY. 

(536)  Pretence  that  a  broken  bank  note  was  good.(^q') 
That  J.  S.j  &c.,  on,  &c.,  at,  &c.,  being  a  person  of  evil  dispo- 
sition, and  contriving  and  intending  unlawfully,  fraudulently,  and 
deceitfully  to  cheat  and  defraud  one  H.  S.  G.,  an  honest  and 
worthy  citizen  of  the  commonwealth,  on,  &c.,  did  falsely,  know- 
ingly, unlawfully,  and  designedly  pretend  to  the  said  H.  S.  G. 
that  a  certain  note,  partly  written  and  partly  printed,  which  he 
the  said  J.  S.  then  and  there  produced  and  delivered  to  the  said 
H.  S.  G.,  and  which  said  note  was  and  is  as  follows,  that  is  to 
say  (here  set  out  note),  was  a  good  and  valuable  promissory  note 
for  the  payment  of  money,  called  a  bank  note,  issued  by  the 
Commercial  Bank  of  Millington,  and  that  the  said  Commercial 
Bank  of  Millington  was  a  good  and  solvent  bank  ;  by  means  of 
which  said  false  pretences  the  said  J.  S.  did  then  and  there  un- 
lawfully obtain  from  the  said  H.  S.  G.  one  rifle,  of  the  value  of 
nine  dollars,  lawful  money,  of  the  property  of  him  the  said  H. 
S.  G.,  and  one  dollar,  lawful  money,  of  the  moneys  of  him  the 
said  H.  S.  G.,  with  intent  to  cheat  and  defraud  him,  the  said  H. 
S.  G.,  of  the  same.  Whereas,  in  truth  and  in  fact,  the  said 
promissory  note  for  the  payment  of  money,  called  a  bank  note, 
issued  by  the  Commercial  Bank  of  Millington,  was  not  a  good 
and  valuable  promissory  note  for  the  payment  of  money,  and 
was  of  no  value  whatever.  And  whereas,  in  truth  and  in  fact, 
the  said  Commercial  Bank  of  Millington  was  not  a  good  and 
solvent  bank,  which  he  the  said  J.  S.  then  and  there  at  the  time 
of  the  false  pretences  aforesaid  well  knew,  to  the  great  damage 
and  deception  of  the  said  H.  S.  G.,  to  the  evil  example  of  all 
others  in  like  case  offending,  contrary,  &c.,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(537)  Pretence  that  a  flash  note  was  good.(^q^^ 

That  A.  B.,  &c.,  on,  &c.,  at  B.  aforesaid,  in  the  county  afore- 
said, unlawfully,  knowingly,  and  designedly  did  falsely  pretend 

{q)  This  form  is  given  by  Judge  Lewis,  in  his  excellent  work  on  Criminal 
Law,  p.  647.  See  R.  v.  Philpotts,  1  C.  &  K.  112 ;  R.  w.  Barnard,  7  C.  &  P.  784; 
R.  V.  Spencer,  3  C.  &  P.  420;  and  see  also  particularly,  note  to  526. 

(9I)  R.  V.  Coulson,  1  Den.  C.  C.  592  ;  1  Temp.  &  Mew,  C.  C.  592;  4  Cox,  C. 
C.  227. 

498 


FALSE  PRETENCES.  (539) 

to  C.  D.  that  a  certain  printed  paper  then  produced  by  the  said 
A.  B.,  and  offered  and  given  by  him  to  the  said  C.  D.  in  payment 
for  certain  pigs,  before  then  agreed  to  be  sold  by  the  said  C.  D. 
to  the  said  A.  B.,  was  a  good  and  valid  promissory  note  for  the 
payment  of  fifty  dollars,  by  means  of  which  said  false  pretence 
the  said  A.  B.  did  then  and  there  unlawfully,  knowingly,  and 
designedly  obtain  from  the  said  C.  D.  five  pigs,  of  the  value  of 
five  dollars  each,  and  certain  money,  to  wit,  the  sum  of  twenty- 
five  dollars,  of  the  goods,  chattels,  and  moneys  of  the  said  C.  D., 
with  intent  then  and  there  to  cheat  and  defraud  the  said  C.  D.  of 
the  same^  Whereas,  in  truth  and  in  fact,  the  said  printed  paper 
was  not  a  good  and  valid  promissory  note  for  the  payment  of 
the  sum  of  fifty  dollars,  or  for  the  payment  of  any  sum  what- 
ever, as  the  said  A.  B.  then  and  there  well  knew ;  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  &c. 

(538)  Pretence  that  a  worthless  check  or  order  ivas  good.(r') 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  being  a  person  of  a  deceitful 
and  subtle  mind  and  disposition,  and  intending  to  cheat  and  de- 
fraud one  W.  M.,  did  unlawfully,  falsely,  and  wickedly  pretend 
to  the  said  W.  M.  that  a  certain  paper  writing,  which  he  the  said 
defendant  then  and  there  produced  to  the  said  W.  M.,  and  which 
was  as  follows  :  — 

'•  X2o.  6th  January,  1837. 

To  Messrs.  S.  &  Co.,  bankers,  Bristol.  Pay  the  bearer  twenty- 
five  pounds.  R.  C.  C.  S.  P." 
was  a  good  and  genuine  order  for  the  payment  of  the  said 
twenty-five  pounds,  and  of  the  value  of  twenty-five  pounds  ; 
whereas,  in  truth  and  fact  [negativing'  the  pretence)^  which  he 
the  said  defendant  then  and  there  well  knew,  by  means  of  which 
said  false  pretence,  &c.  [stating  the  thing  obtained). 

(539)  Another  form  for  same. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  did  go  to  a  certain  shop  of 
one  B.  M.  there  situate,  and  then  and  there  unlawfully,  know- 
ingly, and  designedly  did  falsely  pretend  to  the  said  B.  M.  that 
if  he,  the  said  B.  M.,  would  send  a  pair  of  candlesticks  of  him 

(r)  R.  V.  Parker,  7  C.  &  P.  825.  This  is  the  substance  of  the  fourth  count  in 
this  case,  on  which  a  majority  of  the  judges  held  the  conviction  right. 

499 


(639)  OFFENCES  AGAINST  PROPERTY. 

the  said  B.  M.  (which  the  said  B.  M.  then  showed  to  the  said 

A.  B.),  the  next  day  to  him,  the  said  A.  B.,  to  his  lodgings  at, 
&c.,  with  a  bill  and  receipt,  that  he  the  said  A.  B.  would  pay  for 
them  upon  the  delivery,  by  giving  said  B.  M.  an  order  for  the 
payment  of  money,  which  he  the  said  A.  B.  then  and  there  falsely 
pretended  was  in  his  possession,  by  means  of  which  said  false 
pretence  he  the  said  A.  B.,  afterwards,  to  wit,  on,  &c.,  aforesaid, 
at,  &c.,  aforesaid,  unlawfully,  knowingly,  and  designedly  did 
obtain  from  the  said  B.  M.  one  pair  of  candlesticks,  of  the  value 
of,  &c.,  of  the  goods,  wares,  and  merchandises  of  him  the  said 

B.  M.,  with  intent  then  and  there  to  cheat  and  defraud  him  of 
the  same  ;  whereas,  in  truth  and  in  fact,  when  he  the  said  B.  M., 
on  the  day  and  year  aforesaid,  sent  the  said  goods,  &c.,  to  the 
said  lodgings  of  him  the  said  A.  B.,  at,  &c.,  aforesaid,  with  a  bill 
and  receipt,  he  the  said  A.  B.  did  not  pay  for  them  upon  the 
delivery  by  a  valid  order  for  the  payment  of  money  or  otherwise, 
but  did  then  and  there  unlawfully,  knowingly,  designedly,  fraud- 
ulently, and  deceitfully  deliver  to  W.  J.,  a  servant  of  him  the  said 
B.  M.,  sent  by  the  said  B.  M.  to  the  said  A.  B.  with  the  said 
goods,  &c.,  and  who  delivered  the  same  to  him  with  a  bill  and 
receipt,  a  certain  paper  writing,  purporting  to  be  an  order  for  the 
payment  of  money,  subscribed  A.  B.,  purporting  to  bear  date 
the,  &c.,  and  to  be  directed  to  P.  and  Q,.,  bankers  and  partners, 
by  the  name  and  description  of,  &c.,  for  the  payment  of,  &c.,  to 
Messrs.  R.  and  M.,  or  bearer,  he  the  said  A.  B.  then  and  there 
well  knowing{s)  the  same  to  be  of  no  value,  and  that  the  same 
would  not  be  paid.  And  whereas,  in  truth  and  in  fact,  the  said 
A.  B.  had  not,  at  the  time  of  the  false  pretence  aforesaid,  in  his 
possession  or  power,  any  valid  order  for  the  payment  of  money 
whatsoever,  against,  &c.,  and  against,  &c.     ( Conclude  as  in  book 

1,  chapter  3.) 

Second  count. 

And  the  jurors,  &c.,  that  the  said  A.  B.,  on,  &c.,  did  fraudu- 
lently inform  and  promise  the  said  B.  M.,  that  if  he  the  said  B. 
M.  would  send  a  pair  of  candlesticks  of  the  said  B.  M.,  which  he 

(s)  It  must  be  shown  to  be  A.  B.'s  handwriting,  and  that  he  knew  it  to  be 
worthless.  Wickham  v.  The  Queen  (in  error),  10  A.  &  E.  34  ;  2  Per.  &  Da. 
333,  S.  C;  R.  V.  Philpotts,  C.  &  K.  112.  See  R.  v.  Jackson,  Dickinson's  Q.  S. 
332,  n. 

600 


FALSE    PRETENCES.  (540) 

the  said  B.  M.  then  showed  to  the  said  A.  B.,  the  next  day  to 
him  the  said  A.  B.  to  his  lodgings  at,  &c.,  with  a  bill  and  receipt, 
that  the  said  A.  B.  would  pay  for  them  upon  the  delivery.  And 
the  jurors,  &o.,  that  the  said  A.  B.  did  then  and  there,  to  wit, 
on,  &c.,  at,  &c.,  deliver  to  W.  J.,  then  being  the  servant  of  the 
said  B.  M.,  and  then  having  the  said  candlesticks  in  his  posses- 
sion, a  certain  paper  writing,  purporting  to  be  an  order  for  pay- 
ment of  money,  subscribed,  &c.  (as  in  last  count),  and  then  and 
there  unlawfully,  knowingly,  and  designedly  did  falsely  pretend 
to  the  said  W.  J.  that  he,  the  said  A.  B.,  then  kept  cash  with  the 
said  P.  and  Q.,  and  that  they  were  then  his  bankers,  and  that 
the  sum  of,  &c.,  mentioned  in  the  said  paper  writing,  purporting 
to  be  an  order  for  payment  of  money,  would  be  duly  paid  by 
them;  by  means  of  which  said  last  mentioned  false  pretences, 
the  said  A.  B.  did  then  and  there,  to  wit,  at,  &c.,  unlawfully, 
knowingly,  and  designedly  obtain  from  the  said  W.  J.  one  pair 
of  candlesticks,  of  the  value,  &c.,  the  goods,  &c.,  of  the  said  B. 
M.,  with  intent  then  and  there  to  defraud  him  of  the  same; 
whereas,  in  truth  and  in  fact,  the  said  A.  B.  did  not  then  keep 
cash  with  P.  and  Q,.,  nor  were  they  then  his  bankers,  nor  was 
the  sum  of,  &c.,  mentioned  in  the  said  paper  writing,  purporting 
to  be  an  order  for  payment  of  money,  duly  paid  by  them,  or  hath 
the  same,  or  any  part  thereof  been  paid  by  them,  or  him  the  said 
A.  B.,  or  any  person  or  persons  whomsoever ;  and  whereas,  in 
truth  and  in  fact,  the  said  A.  B.  then  and  there  well  knew  that 
the  said  paper  writing,  purporting  to  be  an  order  for  payment  of 
money,  was  of  no  value,  and  was  fabricated  by  him  on  purpose 
to  cheat  and  defraud  the  said  A.  B.,  and  that  the  sum  of  money 
therein  mentioned  would  not  be  paid,  against,  &c.,  and  against, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

(540)    Obtaining  goods  hy  check  on  a  hank  where  the  defendant  had 

no  effects. (^a^ 

That  A.  B.,  late  of  B.,  in  the  County  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  at  B.  aforesaid,  in 

(a)  See  Rex  v.  Jackson,  3  Campbell,  370;  6  Cox,  C.  C.  Appendix,  page  1. 
"  This  indictment  is  framed  with  reference  to  Rex  v.  Parker,  2  Moody,  C.  C.  1 ; 
7  Carrington  &  Payne,  825;  and  IVIr.  Greaves'  note  in  his  edition  of  Russell  on 
Crimes,  vol.  ii.  p.  300,  note  (/)." 

501 


(541)  OFFENCES  AGAINST  PROPERTY. 

the  county  aforesaid,  unlawfully,  knowingly,  and  designedly  did 
falsely  pretend  to  C.  D.  that  a  certain  paper  writing  produced  by 
the  said  A.  B.  to  the  said  C.  D.,  and  purporting  to  be  a  check 
drawn  by  the  said  A.  B.  upon  E.  F.  and  Company,  bankers,  for 
the  payment  to  the  bearer  of  the  sum  of  one  hundred  dollars, 
was  then  and  there  a  good,  genuine,  and  available  order  for  pay- 
ment of  the  sum  of  one  hundred  dollars,  and  was  then  and  there 
of  the  value  of  one  hundred  dollars,  which  said  check  is  of  the 
tenor  following,  that  is  to  say,  &c. ;  and  that  the  said  A.  B.  kept 
an  account  with  the  said  E.  F.  and  Company,  and  that  the  said 
A.  B.  had  money  in  the  hands  of  the  said  E.  F.  and  Company 
for  the  payment  of  the  said  check,  and  that  the  said  A.  B.  bad 
full  power,  right,  and  authority  to  draw  checks  upon  the  said  E. 
F.  and  Company,  by  means  of  which  said  false  pretences  the 
said  A.  B.  did  then  and  there  unlawfully,  knowingly,  and  design- 
edly obtain  from  the  said  C.  D.  a  gold  watch,  of  the  value  of 
seventy-five  dollars,  and  a  gold  chain,  of  the  value  of  twenty- 
five  dollars,  of  the  goods  and  chattels  of  the  said  C.  D.,  with 
intent  then  and  there  to  cheat  and  defraud  the  said  C.  D.  of  the 
same.  Whereas,  in  truth  and  in  fact,  the  said  paper  writing  was 
not  then  and  there  a  good,  genuine,  and  available  order  for  pay- 
ment of  the  sum  of  one  hundred  dollars,  nor  was  the  same  then 
and  there  of  the  value  of  one  hundred  dollars ;  and  whereas,  in 
truth  and  in  fact,  the  said  A.  B.  did  not  keep  any  account  with 
the  said  E.  F.  and  Company ;  and  whereas,  in  truth  and  in  fact, 
the  said  A.  B.  had  not  any  money  in  the  hands  of  the  said  E.  F. 
and  Company  for  the  payment  of  the  said  check ;  and  whereas, 
in  trutli  and  in  fact,  the  said  A.  B.  had  not  any  power,  right,  or 
authority  to  draw  checks  upon  the  said  E.  F.  and  Company,  as 
the  said  A.  B.  then  and  there  well  knew;  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

(541)  Pretence  that  defendant  was  the  agent  of  A.  B.,  and  as  such 
had  been  sent  hy  A.  B.  to  C  D.,  to  receive  certain  money  due 
from  the  latter  to  the  former. (t) 

That  F.  C,  &c.,  on,  &c.,  at,  &c.,  being  a  person  of  an  evil 
disposition,  and  devising  and  intending  by  unlawful  ways  and 

(<)  This  form  was  sustained  in  Com.  v.  Call,  21  Pick.  515.     Morton,  J.,  said : 
"  This  indictment  is  founded  on  the  Rev.  Sts.  eh.  126,  §  32,  which  provides,  that 

602 


FALSE  PRETENCES.  (541) 

means  to  obtain  and  get  into  his  hands  and  possession  the 
goods,  merchandise,  chattels,  and  effects  of  the  honest  and  good 

if  any  person  shall  designedly,  by  any  false  pretence,  and  with  intent  to  defraud, 
obtain  from  any  other  person  any  money,  goods,  wares,  merchandise,  or  other 
property,  he  shall  be  punished,  &c. 

"  The  indictment  clearly  brings  the  offence  within  the  interdiction  of  the 
statute,  and  indeed  uses  all  the  substantive  words  of  the  statute  itself  It  alleges 
that  the  defendant  '  ffe((7«(?r//;/,' '  tt>(7/i  an  intent  to  defraud'  ^  by  fah".  pretences' 
(fully  setting  them  forth),  did  '  obtain  '  certain  money.  These,  with  other  neces- 
sary allegations  to  show  who  was  intended  to  be  and  actually  was  defrauded, 
who  was  intended  to  be  and  actually  was  deceived,  and  whose  was  the  money- 
obtained,  most  certainly  contain  every  averment  which  can  be  needed  '  fully  and 
plainly,  substantially  and  formally'  to  describe  the  offence  of  which  the  defend- 
ants stand  indicted. 

"  The  objection  to  the  indictment  is,  that  it  alleges  an  intent  to  defraud  one 
person,  and  that  false  pretences  were  practised  upon  another  ;  that  one  man  was 
deceived  and  his  money  obtained,  and  another  defrauded.  The  facts  reported 
clearly  show  that  these  allegations  are  the  only  ones  which  would  meet  the  proof; 
and  that  if  this  indictment  cannot  be  sustained,  a  gross  fraud  may  be  practised 
within  the  words  of  the  stotute,  and  yet  not  be  liable  to  punishment  under  it.  A 
combination  of  facts  has  here  occurred,  and  may  occur  again,  where  a  deception 
has  been  practised  upon  one  person,  and  Jus  property  obtained,  and  the  loss  has 
fallen  upon  another,  the  intention  being  to  defraud  him.  This  is  clearly  within 
the  mischief  intended  to  be  guarded  against,  and,  we  have  no  doubt,  within  the 
effective  prohibition  of  the  statute. 

"  This  indictment  Avould  manifestly  be  bad  at  common  law,  because  the  ob- 
taining property  by  false  pretences  is  not  an  offence  punishable  at  common  law. 
But  had  fiilse  tokens,  one  of  the  means  of  deception  mentioned  in  this  statute, 
been  used,  it  is  contended  that  the  indictment  would  still  be  defective  by  the 
rules  of  the  common  law,  because  the  allegation  that  one  was  deceived  and  an- 
other defrauded  is  repugnant,  absurd,  and  suicidal.  And  the  case  of  the  King 
V.  Lara  (2  Leach,  739),  is  relied  upon  as  deciding  this  point.  That  case,  which 
certainly  seems  to  be  directly  in  point,  was  an  Old  Bailey  trial,  in  which,  accord- 
ing to  the  report,  the  decision  appears  to  have  been  made  by  the  jury  rather 
than  the  bench.  At  most  it  was  a  hasty  ruling,  during  a  criminal  trial,  in  a 
tribunal  more  remarkable  for  its  promptitude  than  its  deliberation  in  such  trials  ; 
it  never  received  a  revision,  and  is  not  entitled  to  much  respect. 

"  But  without  stopping  to  inquire  whether  such  an  indictment  would  be  good 
at  common  law  or  not,  we  are  all  satisfied  that  this  is  a  good  indictment  under 
the  statute. 

"  The  grammatical  and  critical  objections,  however  ingenious  and  acute  they 
may  be,  cannot  prevail.  The  age  has  gone  by  when  bad  Latin  or  even  bad  Eng- 
lish, so  it  be  sufficiently  intelligible,  can  avail  against  an  indictment,  declaration, 
or  plea.  The  passage  objected  to  may  be  somewhat  obscure,  but,  by  a  reference 
to  the  context,  is  capable  of  a  pretty  certain  interpretation.  The  pronoun  them 
must  be  referred  to  that  antecedent  to  which  the  tenor  of  the  instrument  and  the 

503 


(541)  OFFENCES  AGAINST  PROPERTY. 

citizens  of  this  commonwealth,  and  with  jntent  to  cheat  and 
defraud^one  A.  W.  and  one  G.  S.  of  their  money,  did  then  and 
there  unlawfully,  knowingly,  and  designedly  falsely  pretend  and 
represent  to  one  C.  A.  P.,  a  person  who  owed  a  sum  to  said  W. 
and  S.,  to  wit,  the  sum  of  eleven  dollars  and  sixty-three  cents, 
that  the  said  C.  then  and  there  was  an  authorized  collector  and 
a  servant  of  said  W.  and  S.,  that  said  W.  and  S.  had  employed 
and  sent  him  to  collect  and  receive  for  them  said  sum  of  money 
so  due  as  aforesaid,  and  owed  by  the  said  C.  A.  P.  to  them. 
And  the  said  C.  A.  P.,  then  and  there  believing  the  said  false 
pretences  and  representations  so  made  as  aforesaid  by  the  said 
C.J  and  being  deceived  thereby,  was  induced,  by  reason  of  the 
false  pretences  and  representations  so  made  as  aforesaid,  to 
deliver,  and  did  then  and  there  deliver,  to  the  said  F.  C,  the  sum 
of  eleven  dollars  sixty-three  cents,  due  and  owing  from  him  said 
P.,  to  said  W.  and  S.,  of  the  proper  money  and  effects  of  said 
P.  due  and  owing  as  a;foresaid  to  said  W.,^nd  S.,  and  the  said 
C.  did  then  and  there  receive  and  obtain  the  said  money  and 
effects  of  the  said  P.,  due  and  owing  as  aforesaid  to  said  W. 
and  S.,  by  means  of  the  false  pretences  and  representations  afore- 
said, and  with  the  intent  to  cheat  and  defraud  the  said  P.  and 
said  W.  and  S.  of  the  same  money  and  effects  ;  whereas,  in  truth 
and  in  fact,  said  F.  C.  then  and  there  was  not  an  authorized 
collector  and  a  servant  of  said  W.  and  S.,  and  the  said  W.  and 
S.  had  not  then  and  there  employed  and  sent,  and  did  not  then 
and  there  employ  and  send,  said  C.  to  collect  and  receive  for 
them  said  sum  of  money  so  due  and  owing  as  aforesaid  from 
said  C.  A.  P.  to  them,  but  had  forbidden  said  C.  to  collect  any 
money  and  receive  any  for  them,  and  had  long  before  turned  him 
out  of  their  employment;  and  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  F.  C,  by  means  of  the  false 
pretences  aforesaid,  on,  &c.,  at,  &c.,  unlawfully,  knowingly,  and 
designedly  did  receive  and  obtain  from  said  C.  A.  P.  said  sum 
of  eleven  dollars  and  sixty-three  cents,  being  the  said  money  due 
and  owing  as  aforesaid,  and  effects  of  the  proper  money  and 
effects  of  the  said  P.,  due,  owing,'  and  payable  to  said  W.  and 

principles  of  law  require  that  it  should  relate,  whether  exactly  according  to  the 
rules  of  syntax  or  not. 

"  The  motion  in  arrest  must  be  overruled." 

504 


FALSE  PRETENCES.  (54H) 

S.,  with  intent  to  defraud  them  of  the  same,  against,  &c.,  and 
contrary,  &c.     ( Conclude  as  in  hook  1,  chapter  3.) 

(541^)  Falsely  i^retending  that  defendant  acted  as  broker  for  an 
undisclosed  principal. (^t^^  ' 

That  A.  B.,  &c.,  at,  &c.,  on,  &c.,  with  intent  to  cheat  and 
defraud  G.  M.  B.  and  H.  H.  of  and  out  of  certain  sound  lin- 
seed, which  they,  the  said  G.  M.  B.  and  H.  H.,  then  and  there 
had,  possessed,  and  owned,  did  then  and  there  unlawfully,  know- 
ingly, and  designedly  falsely  pretend  and  represent  to  said  B. 
and  H.  that  he,  the  said  A.  B.,  was  then  and  there  a  merchandise 
broker,  and  that  he  had  received,  and  then  and  there  had  in  his 
capacity  as  merchandise  broker  as  aforesaid,  an  order  from  cer- 
tain persons  in  New  York,  meaning  thereby  the  City  of  New 
York,  in  the  State  of  New  York,  whose  names  the  said  A.  B. 
did  not  then  and  there  disclose  to  the  said  B.  and  H.,  and  whose 
names  are  to  the  said  jurors  unknown,  then  and  there  to  pur- 
chase in  behalf  of  said  persons  a  large  quantity  of  sound  linseed, 
to  wit,  two  thousand  bags  of  sound  linseed,  at  the  price  of  three 
dollars  for  each  bushel  of  said  sound  linseed,  and  the  said  A.  B. 
then  and  there  falsely  offered,  in  his  said  capacity  as  merchan- 
dise broker,  in  behalf  of  said  persons,  and  in  pursuance  of  the 
order  which  he,  the  said  A.  B.,  then  and  there  falsely  pretended 
and  represented  that  he,  in  his  capacity  as  merchandise  broker, 
had  received  and  had  as  aforesaid,  to  the  said  B.  and  H.,  to  pur- 
chase of  them  two  thousand  bags  of  sound  linseed,  which  they, 
the  said  B.  and  H.,  then  and  there  had,  owned,  and  possessed,  at 
the  price  of  three  dollars  for  each  bushel  of  said  sound  linseed, 
and  they,  the  said  B.  and  H.,  then  and  there  having  and  desiring 
to  sell  two  thousand  bags  of  sound  linseed,  at  the  price  of  three 
dollars  for  each  bushel  of  said  sound  linseed,  and  then  and  there 
believing  the  said  false  pretences,  representations,  declarations, 
and  offer  so  falsely  made  as  aforesaid  by  the  said  A.  B.  to  be  true, 
and  being  deceived  thereby,  were  induced,  by  reason  of  the  said 
false  pretences,  representations,  declarations,  and  offer  so  falsely 
made  as  aforesaid,  then  and  there  to  accept  the  offer  so  falsely 
made  as  aforesaid  by  the  said  A.  B.  to  them,  the  said  B.  and  H., 
as  aforesaid,  and  then  and  there  agree  to  sell  to  the  said  persons 
(fl)  Sustained  in  Com.  v.  Jeffries,  6  Allen,  548. 

505 


(541i)  OFFENCES   AGAINST   PROPERTY. 

from  whom  the  said  A.  B.  falsely  pretended  and  represented  that 
he  the  said  A.  B.,  in  his  said  capacity  as  merchandise  broker,  had 
received  an  order  to  purchase  a  large  quantity  of  sound  linseed, 
to  wit,  two  thousand  bags  of  sound  linseed,  at  the  price  of  three 
dollars  for  each  bushel  of  said  sound  linseed  as  aforesaid,  and 
then  and  there  induced,  by  reason  of  the  false  pretences,  represen- 
tations, declarations,  and  offer  so  falsely  made  as  aforesaid  by 
the  said  A.  B.,  did  sell  to  the  said  persons  from  whom  the  said 
A.  B.  falsely  pretended  and  represented  that  he,  the  said  A. 
B.,  in  his  said  capacity  as  merchandise  broker,  had  received  said 
order  to  purchase  two  thousand  bags  of  sound  linseed,  at  the 
price  of  three  dollars  for  each  bushel  of  said  sound  linseed  ; 
and  they,  the  said  B.  and  H.,  were  also  then  and  there  in- 
duced, by  reason  of  the  false  representations,  declarations,  and 
offer  so  falsely  made  as  aforesaid,  to  deliver,  and  then  and 
there  being  so  induced,  did  deliver,  in  pursuance  of  their  accept- 
ance of  the  offer  aforesaid,  falsely  made  as  aforesaid,  and  of 
their  agreement  aforesaid,  induced  by  the  said  false  pretences, 
declarations,  representations,  and  offer  so  falsely  made  as  afore- 
said, and  of  their  sale  aforesaid,  induced  and  made  as  aforesaid 
to  the  said  A.  B.,  in  his  said  capacity  as  merchandise  broker, 
two  thousand  bags  of  sound  linseed,  at  the  price  of  three  dollars 
for  each  bushel  of  said  sound  iinseed,  each  of  the  said  bags  of 
sound  linseed  then  and  there  containing  three  and  a  half  bushels 
of  sound  linseed,  and  each  bag  of  said  sound  linseed  being  then 
and  there  of  the  value  of  eleveri  dollars  and  fifty  cents,  and  being 
then  and  there  of  the  property  of  the  said  B.  and  H. ;  and  the 
said  A.  B.  did  then  and  there,  in  his  said  capacity  as  merchandise 
broker,  receive  the  said  two  thousand  bags  of  sound  linseed,  and 
each  bag  thereof,  at  the  price  of  three  dollars  for  each  bushel  of 
said  sound  linseed,  in  pursuance  of  the  said  sale  and  delivery  as 
aforesaid;  and  the  said  A.  B.  did  then  and  there,  in  his  said 
capacity  as  merchandise  broker,  make  the  said  false  pretences, 
representations,  declarations,  and  offer  as  aforesaid  to  the  said  B. 
and  H.,  to  induce  the  said  B.  and  H.  to  sell  to  the  persons  here- 
inbefore described,  and  to  deliver  to  him,  the  said  A.  B.,  in  his 
said  capacity  as  merchandise  broker,  the  said  two  thousand  bags 
of  sound  linseed,  and  each  bag  thereof,  in  manner  and  form 
aforesaid,  and  the  said  A.  B.,  in  his  said  capacity  as  merchandise 
606 


FALSE  PRETENCES.  (542) 

broker,  did  then  and  there  receive  and  obtain  from  the  said  B. 
and  H.  the  said  two  thousand  bags  of  sound  linseed,  and  each 
bag  thereof,  of  the  value  aforesaid,  of  the  property  of  them,  the 
said  B.  and  H.,  by  means  of  the  said  false  pretences,  representa- 
tions, declarations,  and  offer  so  falsely  made  as  aforesaid,  and 
with  intent  to  cheat  and  defraud.  Whereas,  in  truth  and  fact, 
the  said  A.  B.  had  not  then  and  there,  in  his  said  capacity  as 
merchandise  broker,  or  otherwise,  received,  and  did  not  then  and 
there,  in  his  said  capacity  as  merchandise  broker,  or  otherwise, 
have  an  order  from  said  persons  in  New  York,  or  from  any  other 
person  or  persons  anywhere,  for  the  purchase,  in  his  capacity  as 
merchandise  broker,  or  otherwise,  in  behalf  of  said  persons,  or  in 
behalf  of  any  one,  of  a  large  quantity  of  sound  linseed,  to  wit, 
of  two  thousand  bags  of  sound  linseed,  or  of  any  sound  linseed; 
and  did  not  then  and  there,  in  his  said  capacity  of  merchandise 
broker,  or  otherwise,  have  from  said  persons,  or  from  any  person 
or  persons,  an  order  for  the  purchase  in  behalf  of  said  persons,  or 
in  behalf  of  any  one,  of  any  linseed  of  sound  quality  or  otherwise, 
at  the  price  of  three  dollars  for  each  bushel  of  said  sound  linseed, 
as  the  said  A.  B.  then  and  there  well  knew. 

And  so  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  say, 
that  the  said  A.  B,,  by  means  of  the  false  pretences  aforesaid,  on, 
&c.,  at,  &c.,  in  his  said  capacity  of  merchandise  broker  as  afore- 
said, unlawfully,  knowingly,  designedly,  and  fraudulently  did 
obtain  and  receive  from  the  said  B.  and  H.  the  said  sound  lin- 
seed, of  the  value  aforesaid,  of  the  property  of  the  said  B.  and 
H.,  with  intent  to  cheat  and  defraud  as  aforesaid,  &;c.  {Conclude 
as  in  book  1,  chapter  3.) 

(542)  Pretending  to  he  clerk  of  a  steamboat^  and  authorized  to  collect 
money  for  the  boat. 

That  A.  B.,  on  the  first  day  of  November,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  forty-six,  in  the  County  of 
Hamilton  aforesaid,  unlawfully  did  falsely  pretend  to  one  M.  N., 
that  he  the  said  A.  B.  then  was  clerk  of  the  steamboat  "  Harlem," 
and  as  such,  that  the  said  A.  B.  was  then  and  there  entitled  to 
receive  from  the  said  M.  N.  and  O.  P.,  Q.  R.  and  S.  T.  (the  said 
M.  N.,  O.  P.,  Q,.  R.,  and  S.  T.  then  and  there  being  partners 
under  the  name  and  firm  of  N.,  S.  &  Co.),  a  large  sum  of  money 

607 


(543)  OFFENCES  AGAINST  PROPERTY. 

to  wit,  the  sum  of  twenty-four  dollars  and  ninety-four  cents,  on 
account  of  and  for  freight  and  charges  due  the  said  steamboat 
"  Harlem,"  by  means  of  which  said  false  pretences,  he  the  said 
A.  B.  then  and  there  unlawfully  did  obtain  from  the  said  M.  N., 
O.  P.,  Q,.  R.,  and  S.  T.,  a  large  sum  of  money,  to  wit,  the  said 
sum  of  twenty-four  dollars  and  ninety-four  cents,  of  the  moneys 
and  effects  of  the  said  M.  N.,  O.  P.,  Q.  R.,  and  S.  T.,  with  intent 
then  and  there  to  cheat  and  defraud  the  said  M.  N.,  O.  P.,  Q,.  R., 
and  S.  T.  of  the  said  sum  of  money ;  whereas,  in  truth  and  in 
fact,  the  said  A.  B.  was  not  then  such  clerk  as  aforesaid,  nor  was 
the  said  A.  B.  then  entitled  to  receive  said  sum  of  money,  or  any 
part  thereof,  from  the  said  M.  N.,  O.  P.,  Q.  R,,  and  S.  T.,  or 
either  of  them,  and  the  said  A.  B.,  at  the  time  he  so  falsely  pre- 
tended as  aforesaid,  well  knew  the  said  false  pretences  to  be 
false,  &c.(a) 

(543)  Pretence  made  to  a  tradesman  that  defendant  was  a  servant 
to  a  customer^  and  was  sent  for  the  particular  goods  ob- 
tained.(^71) 

That  A.  B.,  &c,,  on,  &c.,  at,  &c.,  contriving  and  intending  un- 
lawfully, fraudulently,  and  deceitfully  to  cheat  and  defraud  one 
C.  D.  of  his  goods,  wares,  and  merchandises,  on,  &c.,  at,  &c., 
aforesaid,  unlawfully,  knowingly,  and  designedly  did  falsely  pre- 
tend to  the  said  C.  D.,  that  he  the  said  A.  B.  then  was  the  ser- 
vant of  one  C.  Q.,  of,  &c.,  tailor  (the  said  C.  Q.  then  and  long 
before  being  well  known  to  the  said  C.  D.,  and  a  customer  of  the 
said  C.  D.  in  his  said  business  and  way  of  trade),  and  that  he 
the  said  A.  B.  was  sent  by  the  said  C.  Q.  to  th?  said  C.  D.,  for 
ten  yards  of  certain  superfine  woollen  cloth,  by  which  said  false 
pretence  the  said  A.  B.  did  then  and  there,  to  wit,  on,  &c.,  at, 
&c.,  aforesaid,  unlawfully,  knowingly,  and  designedly  obtain  from 
the  said  C.  D.  ten  yards  of  superfine  woollen  cloth,  of  the  value 
of  fifteen  pounds,  of  the  goods,  wares,  and  merchandises  of  the 
said  C.  D.,(y)  with  intent  then  and  there  to  cheat  and  defraud 
him  the  said  C.  D.  of  the  same,  whereas,  in  truth  and  in  fact,  the 

(a)  Warren's  C.  L.  233.  (u)  Dickinson's  Q.  S.  335. 

(v)  Essential  to  be  stated.  Reg.  v.  Parker,  3  Q.  B.  292 ;  Reg.  v.  Norton,  8 
C.  &  P.  196.  The  want  of  it  will  occasion  indictment  to  be  quashed  (by  four 
judges),  S.  C,  for  it  is  not  cured  by  verdict  under  7  Geo.  IV.  c.  64,  s.  21.     See 

508 


FALSE   PRETENCES.  (544^ 

said  A.  B.  was  not  then  the  servant  of  the  said  C.  Q.,  and  whereas, 
he  the  said  A.  B.  was  not  then,  or  ever  hath  been,  sent  by  the 
said  C.  Q,.  to  the  said  C.  D.  for  the  said  cloth,  or  for  any  cloth 
whatsoever,  against,  &c.,  and  against,  &c.  ( Conclude  as  in  book 
1,  chapter  3.) 

(544)  Another  form  for  same.Qw') 

That  J..  S.,  &c.,  on,  &c.,  at,  &c.,  intending,  &c.,  unlawfully, 
knowingly,  and  designedly  did  falsely  pretend  to  one  J.  N.,  that 
the  said  J.  S.  then  was  the  servant  of  one  R.  O.,  of  St.  Paul's 
Churchyard,  in  the  City  of  London,  tailor  (the  said  R.  O.  then 
and  long  before  being  well  known  to  the  said  J.  N.,  and  a  cus- 
tomer of  the  said  J.  N.  in  his  business  and  way  of  trade  as 
a  woollen  draper),  and  that  the  said  J.  S.  was  then  sent  by  the 
said  R.  O.  to  the  said  J.  N.  for  five  yards  of  superfine  woollen 
cloth,  by  means  of  which  said  false  pretences  the  said  J.  S.  did 
then  and  there  unlawfully  obtain  from  the  said  J.  N.  five  yards 
of  superfine  woollen  cloth,  of  the  value  of  five  pounds,  of  the 
goods  ("  any  chattel,  money,  or  valuable  security  ")-,{x)  of  the  said 
J.  N.,  with  intent  then  and  there  to  cheat  and  defraud  him  the 
said  J.  N.  of  the  same;  whereas,  in  truth  and  in  fact,  the  said  J. 
S.  was  not  then  the  servant  of  the  said  R.  O. ;  and  whereas,  in 
truth  and  in  fact,  the  said  J.  S.  was  not  then,  or  at  any  other  time, 
sent  by  the  said  R.  O.  to  the  said  J.  N.  for  the  said  cloth,  or  for 
any  cloth  whatsoever,  to  the  great  damage  and  deception  of  the 
said  J.  N.,  to  the  evil  example  of  all  others  in  the  like  case  offend- 
ing, against,  &c.,  and  against,  &c.  {Conclude  as  in  book  1,  chap- 
ter 3.) 

(544^)  Pretence  that  defendant  was  asked  hy  "  a  person  living  in  a 
large  house  down  the  street^''  ^c,  to  buy  carpet  of  prose- 
cutor.{oK)  » 

That  A.  B.,  on,  &c.,  at,  &c.,  unlawfully,  knowingly,  and  de- 
signedly did  falsely  pretend  to  one  G.  S.  that  a  certain  person 

Martin  et  ux.  v.  The  Queon  (in  error),  3  N.  &  P.  472  ;  8  A.  &  E.  481  ;  R.  v. 
Douglass,  Dickinson's  Q.  S.  337. 

(to)  Arclibold's  C.  P.  5th  Am.  ed.  345. 

(z)  See  7  &  8  Geo.  IV.  c.  29,  s.  5. 

(ai)  Sustained  in  R.  v.  Burnsides,  8  Cox,  C.  C,  370. 

509 


(545)  OFFENCES  AGAINST  PROPERTY. 

who  lived  in  a  large  house  down  the  street,  and  had  had  a 
daughter  married  some  time  back,  had  been  at  him  the  said  A. 
B.  about  some  carpet,  and  had  asked  him,  the  said  A.  B.,  to  pro- 
cure a  piece  of  woollen  carpet,  to  wit,  about  twelve  yards.  By 
means  of  which  said  false  pretences  the  said  A.  B.  did  then  and 
there  unlawfully  obtain  from  the  said  G.  S.  twenty  yards  of 
woollen  carpet,  of  the  goods  and  chattels  of  the  said  G.  S.,  with 
intent  thereby  then  to  defraud,  &c.,  whereas,  in  truth  and  fact, 
no  such  person  as  aforesaid  had  then,  or  at  any  other  time,  been 
at  the  said  A.  B.  about  any  carpet,  nor  had  any  such  person  as 
aforesaid  asked  the  said  A.  B.  to  procure  any  piece  of  woollen 
carpet  whatsoever,  to  the  great  damage  and  deception  of  the 
said  G.  S.,  to  the  evil  example,  &c.  [Conclude  as  in  book  1, 
chapter  3.) 

(545)  Pretence  that  the  defendant  was  entitled  to  grant  a  lease  of 
certain  freehold  prope7-ty.(o?^ 

That  P.  F.,  late  of  B.,  in  the  County  of  Middlesex,  laborer, 
on  the  first  day  of  June,  in  the  year  of  our  Lord  at  B. 

aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdiction  of 
the  Central  Criminal  Court,  unlawfully  and  knowingly  did  falsely 
pretend  to  one  B.  E.,  that  the  said  P.  F.  then  was  the  free- 
holder of  a  certain  messuage  and  premises  situate  and  being  in 
Church  Street,  in  B.  aforesaid,  in  the  county  aforesaid,  and  that 
the  said  P.  F.  then  had  a  good  and  sufficient  right,  title,  estate, 
and  interest  in  the  said  messuage  and  premises  to  entitle  and 
enable  the  said  P.  F.  to  grant  to  the  said  B.  E.  a  lease  of  the 
said  messuage  and  premises  for  a  term  of  twenty  years,  and  that 
the  said  P.  F.  then  had  power  to  grant  the  said  lease  to  the  said 
B,  E.,  and  to  give  to  the  said  B.  E.  a  good  and  valid  title  to  the 
said  messuage  and  premises  for  the  said  term  of  twenty  years, 
by  means  of  which  said  false  pretences  the  said  P.  F.  did  then 
and  there  unlawfully  and  fraudulently  obtain  from  the  said  B.  E. 
thirty  pieces  of  the  current  gold  coin  of  this  realm  called  sover- 
eigns, ten  pieces  of  the  current  silver  coin  of  this  realm  called 
shillings,  and  one  promissory  note  of  the  Governor  and  Company 
of  the  Bank  of  England,  for  the  payment  of  ten  pounds,  of  the 
moneys  of  the  said  B.  E.,  with  intent  then  and  there  to  cheat 
{cfi)  5  Cox,  C.  C.  Appendix,  p.  li. 

510 


FALSE   PRETENCES.  (545) 

and  defraud  him  of  the  same ;  whereas,  in  truth  and  in  fact,  the 
said  P.  F.  was  not  at  the  time  he  so  falsely  pretended  as  afore- 
said the  freeholder  of  the  said  messuage  and  premises,  or  of  any 
part  thereof,  nor  had  he  then  any  freehold  estate  whatever  in  the 
said  messuage  and  premises,  or  in  any  part  thereof,  as  the  said 
P.  F.  then  well  knew;  and  whereas,  in  truth  and  in  fact,  the  said 
P.  F.  had  not,  at  the  time  he  so  falsely  pretended  as  aforesaid,  a 
sufficient  right,  title,  estate,  or  interest  to  entitle  or  enable  him  to 
grant  any  lease  of  the  said  messuage  and  premises  for  a  term  of 
twenty  years,  or  any  lease  whatever  of  the  said  messuage  and 
premises,  or  any  part  thereof,  as  the  said  P.  F.  then  well  knew; 
and  whereas,  in  truth  and  in  fact,  the  said  P.  F.  had  not,  at  the 
time  he  so  falsely  pretended  as  aforesaid,  any  right,  title,  estate, 
or  interest  whatever  in  or  to  the  said  messuage  and  premises,  nor 
had  he  tlien  power  to  grant  the  said  lease  to  the  said  B.  E.,  or  to 
give  to  the  said  B.  E.  any  title  to  the  said  messuage  and  prem- 
ises for  the  said  term  of  twenty  years,  or  for  any  term  of  years 
whatever,  or  any  title  whatever  to  the  said  messuage  and  prem- 
ises, or  any  part  thereof;  to  the  great  damage  of  the  said  B.  E., 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace,  &c. 

Second  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  before  and  at  the  time  of  the  committing  of  the 
offence  hereinafter  next  mentioned,  one  J.  L.  was  the  owner  and 
proprietor  of  the  said  messuage  and  premises  in  the  said  first 
count  of  this  indictment  mentioned.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  the  said  P.  F., 
on  the  day  aforesaid,  in  the  year  aforesaid,  at  B.  aforesaid,  in  the 
county  aforesaid,  and  within  the  jurisdiction  aforesaid,  unlawfully 
and  knowingly  did  again  falsely  pretend  to  the  said  B.  E.  that  the 
said  P.  F.  then  was  the  freeholder  of  the  said  messuage  and  prem- 
ises, and  that  the  old  gentleman  to  whom  the  premises  formerly 
belonged,  meaning  the  said  J.  L.,  had  died,  and  had  left  the  said 
P.  F.  everything,  and  that  the  said  P.  F.  then  had  a  sufficient 
estate  and  interest  in  the  said  messuage  and  premises  to  entitle 
and  enable  him  to  grant,  and  then  had  power  to  grant  to  the  said 
B.  E.  a  lease  of  the  said  messuage  and  premises  for  a  term  of 

511 


(546)  OFFENCES  AGAINST  PROPERTY. 

twenty  years,  by  means  of  which  said  false  pretences  in  this  count 
mentioned,  the  said  P.  F.  did  then  and  there  unlawfully  and 
fraudulently  obtain  from  the  said  B.  E.  thirty  pieces  of  the  cur- 
rent gold  coin  of  this  realm  called  sovereigns,  ten  pieces  of  the 
current  silver  coin  of  this  realm  called  shillings,  and  one  prom- 
issory note  of  the  Governor  and  Company  of  the  Bank  of  Eng- 
land, for  the  payment  of  ten  pounds,  of  the  moneys  of  the  said 
B.  E.,  with  the  intent  then  and  there  to  cheat  and  defraud  him 
of  the  same;  whereas,  in  truth  and  in  fact,  the  said  P.  F.  was  not 
at  the  time  he  so  falsely  pretended,  as  in  this  count  mentioned, 
the  freeholder  of  the  said  messuage  and  premises,  or  any  part 
thereof,  nor  had  he  then  any  freehold  in  the  said  messuage  and 
premises,  or  in  any  part  thereof,  as  the  said  P.  F.  then  well  knew ; 
and  whereas,  in  truth  and  in  fact,  at  the  time  the  said  P.  F.  so 
falsely  pretended  as  last  aforesaid,  the  said  J.  L.  had  not  died,  as 
the  said  P.  F.  then  well  knew;  and  whereas,  in  truth  and  in  fact, 
the  said  P.  F.  had  not  at  the  time  he  so  falsely  pretended  as  last 
aforesaid  a  sufficient  estate  or  interest  in  the  said  messuage  and 
premises  to  entitle  or  enable  him  to  grant,  nor  had  he  then  any 
power  to  grant  any  lease  for  a  term  of  twenty  years,  or  any  lease 
whatever,  of  the  said  messuage  and  premises,  or  of  any  part 
thereof,  as  the  said  P.  F.  then  and  there  well  knew ;  to  the  great 
damage  of  the  said  B.  E.,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace,  &c. 

(546)  Pretence  that  the  defendant  was  the  authorized  agent  of  ike 
Executive  Committee  of  the  Exhibition  of  the  Worhs  of  Indus- 
try of  all  Nations^  and  that  he  had  power  to  allot  space  to 
private  individuals  for  the  exhibition  of  their  merchandise.(h) 

That  heretofore,  and  before  the  committing  of  the  offence 
hereinafter  next  mentioned,  to  wit,  on  the  twenty-fifth  day  of 
October,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  fifty,  an  application  was  made  by  Harriet  Richardson,  then 
being  the  wife  of  Thomas  Richardson,  to  one  Adam  Young  the 
younger,  for  a  certain  space,  to  wit,  a  space  of  four  feet  square, 
in  a  certain  building  then  in  the  course  of  erection  in  Hyde  Park, 
in  the  County  of  Middlesex,  for  the  purpose  of  an  exhibition  in- 
tended to  take  place  in  the  year  of  our  Lord  one  thousand  eight 
(/>)  4  Cox,  C.  C.  Appendix,  p.  xlv. 

512 


FALSE    PRETENCES. 


(546) 


hundred  and  fifty-one,  and  called  and  known  as  the  Great  Exhi- 
bition of  the  Works  of  Industry  of  all  Nations,  for  the  purpose 
of  enabling  the  said  Harriet  Richardson  to  exhibit  certain  ar- 
ticles, to  wit,  stays,  at  the  said  exhibition.  And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  further  present,  that  the  said 
Adam  Young  the  younger,  late  of  the  parish  of  Saint  Dunstan 
in  the  East,  in  the  City  of  London,  laborer,  afterwards,  to  wit, 
on  the  day  aforesaid,  in  the  year  aforesaid,  at  the  parish  afore- 
said, in  the  city  aforesaid,  and  within  the  jurisdiction  of  the 
Central  Criminal  Court,  unlawfully,  knowingly,  and  designedly 
did  falsely  pretend  to  the  said  Harriet  Richardson  that  the  said 
Adam  Young  the  younger  then  was  an  authorized  agent  for  the 
purpose  of  granting  space  for  the  exhibition  of  articles  at  the 
said  exhibition;  and  that  the  said  Adam  Young  the  younger 
then  was  the  only  person  who  had  the  power  to  grant  space  to 
the  said  Harriet  Richardson  for  the  exhibition  of  articles  at  the 
said  exhibition  ;  and  that  the  said  Adam  Young  the  younger 
then  had  power  to  grant  to  the  said  Harriet  Richardson  the 
space  so  applied  for  by  the  said  Harriet  Richardson  as  aforesaid ; 
by  means  of  which  said  false  pretences  the  said  Adam  Young 
the  younger  did  then  and  there  unlawfully  obtain  from  the  said 
Harriet  Richardson  three  pieces  of  the  current  silver  coin  of  this 
realm  called  half-crowns,  two  pieces  of  the  current  silver  coin  of 
this  realm  called  shillings,  and  one  piece  of  the  current  silver  coin 
of  this  realm  called  a  sixpence,  of  the  moneys  of  the  said  Thomas 
Richardson,  with  intent  then  and  there  to  cheat  and  defraud  the 
said  Thomas  Richardson  of  the  same;  whereas,  in  truth  and  in 
fact,  the  said  Adam  Young  the  younger  was  not  then  an  author- 
ized agent  for  the  purpose  of  granting,  and  had  not  any  authority 
w^hatever  to  grant,  space  for  the  exhibition  of  articles  at  the  said 
exhibition,  or  any  space  whatever  in  the  said  building,  as  the 
said  Adam  Young  the  younger  then  and  there  well  knew ;  and 
whereas,  in  truth  and  in  fact,  the  said  Adam  Young  the  younger 
was  not  then  the  only  person  who  had  power  to  grant  space  for 
the  exhibition  of  articles  at  the  said  exhibition,  as  the  said  Adam 
Young  the  younger  then  and  there  well  knew;  and  whereas,  in 
truth  and  in  fact,  the  said  Adam  Young  the  younger  had  not 
then  any  power,  authority,  or  right  whatever  to  grant  space  for 

the  exhibition  of  articles  at  the  said  exhibition  to  the  said  Har- 
VOL.I.-33  513 


(546)  OFP^ENCES    AGAINST    PROI'KRTY. 

riet  Richardson,  or  to  any  other  person  whatever,  or  any  space 
whatever  in  the  said  building  to  the  said  Harriet  Richardson,  or 
any  other  person,  as  the  said  Adam  Yonng  the  younger  then  and 
there  well  knew  ;  to  the  great  damage  of  the  said  Thomas  Rich- 
ardson, contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace,  &c. 

Second  courit. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  heretofore,  and  before  the  committinsi;  of  the  oflence 
hereinafter  next  mentioned,  to  wit,  on  the  day  aforesaid,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty,  an  applica- 
tion was  made  by  the  said  Harriet,  the  wife  of  the  said  Thomas 
Richardson,  to  the  said  Adam  Young  the  younger  for  a  certain 
space,  to  wit,  a  space  of  four  feet  square,  at  the  Great  Exhibi- 
tion, meaning  thereby  a  space  of  four  feet  square  in  a  certain 
buildinw  intended  to  be  used  as  the  building  in  which  a  certain 
exhibition,  called  and  known  as  the  Great  Exhibition  of  the 
Works  of  Industry  of  all  Nations,  should  take  place,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  fifty-one,  for  the 
exhibition  of  certain  articles,  to  wit,  stays,  at  the  said  exhibition. 
And  the  jurors  aforesaid  do  further  present,  that  the  said  Adam 
Young  the  younger  afterwards,  to  wit,  on  the  day  aforesaid,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty,  at 
the  parish  aforesaid,  in  the  city  aforesaid,  and  within  the  jurisdic- 
tion of  the  Central  Criminal  Court,  unlawfully,  knowingly,  and 
designedly  did  again  falsely  pretend  to  the  said  Harriet  Richard- 
son, that  the  said  Adam  Young  the  younger  then  had  power  to 
grant  to  the  said  Harriet  Richardson  space  for  the  exhibition  of 
articles  at  the  said  exhibition.  And  that  the  said  Adam  Young 
the  younger  then  had  power  to  grant  to  the  said  Harriet  Rich- 
ardson the  said  space,  so  applied  for  by  the  said  Harriet  Richard- 
son as  aforesaid,  by  means  of  which  said  last  mentioned  false 
pretences  the  said  Adam  Young  the  younger  did  then  and  there 
unlawfully  obtain  from  the  said  Harriet  Richardson  three  other 
pieces  of  the  current  silver  coin  of  this  realm  called  half-crowns, 
two  other  pieces  of  the  current  silver  coin  of  this  realm  called 
shillings,  and  one  other  piece  of  the  current  silver  coin  of  this 
realm  called  a  sixpence,  of  the  moneys  of  the  said  Thomas  Rich- 
614 


FALSE   PRETENCES.  (546) 

ardson,  with  intent  then  and  there  to  cheat  and  defraud  the  said 
Thomas  Richardson  of  the  same;  whereas,  in  truth  and  in  fact, 
the  said  Adam  Young  the  younger  had  not  then  any  power  or 
right  whatsoever  to  grant  space  for  the  exhibition  of  articles  at 
the  said  exhibition  to  the  said  Harriet  Richardson,  or  to  any 
other  person  whatever,  or  any  space  whatever  in  the  said  build- 
ing to  the  said  Harriet  Richardson,  or  any  other  person,  as  the 
said  Adam  Young  the  younger  then  and  there  as  last  aforesaid 
well  knew  ;  to  the  great  damage  of  the  said  Thomas  Richard- 
son, against  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace,  &c. 

Third  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  before  the  committing  of  the  otl'ence  hereinafter 
next  mentioned,  to  wit,  on  the  day  aforesaid,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty,  an  application  was 
made  by  the  said  Thomas  Richardson  to  the  said  Adatn  Young 
the  younger  for  a  certain  space,*to  wit,  a  space  of  four  feet 
square,  in  the  building  intended  for  the  proposed  Great  Exhibi- 
tion of  one  thousand  eight  hundred  and  fifty-one,  meaning 
hereby  the  Great  Exhibition  of  the  Works  of  Industry  of  all 
Nations,  intended  to  be  holden  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  fifty-one.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  heretofore,  and 
before  the  making  of  the  said  last  mentioned  application,  an  Ex- 
ecutive Committee  for  carrying  out  the  said  exhibition  had  been 
and  was  duly  appointed  for  the  purpose  of  carrying  out  the  said 
exhibition,  and  that,  amongst  other  things,  the  power  of  allotting 
space  in  the  said  last  mentioned  building  to  persons  desirous  of 
becoming  exhibitors  in  the  said  exhibition  had  been,  and  was, 
vested  and  intrusted  to  the  said  committee.  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that  the 
said  Adam  Young  the  younger  afterwards,  to  wit,  on  the  day 
aforesaid,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  fifty,  at  the  parish  aforesaid,  in  the  city  aforesaid,  and  within 
the  jurisdiction  aforesaid,  unlawfully,  knowingly,  and  fraudu- 
lently did  again  falsely  pretend  to  the  said  Thomas  Richardson, 
that  the  said  Adam  Young  the  younger  was  the  only  authorized 

615 


(546)  OFFENCES  AGAINST  PROPERTY. 

agent  of  the  commissioners,  meaning  thereby  that  he  was  the 
only  authorized  agent  of  the  said  executive  committee  for  grant- 
ing space,  meaning  thereby  space  in  the  said  last  mentioned  build- 
ing, and  that  the  said  Adam  Young  the  younger  then  had  power 
to  allot  to  tlie  said  Thomas  Richardson  the  space  in  the  said 
building,  so  applied  for  by  the  said  Thomas  Richardson  as  last 
aforesaid,  by  means  of  which  said  last  mentioned  false  pretences, 
the  said  Adam  Young  the  younger  did  then  and  there,  as  last 
aforesaid,  unlawfully  attempt  and  endeavor  unlawfully  to  obtain 
from  the  said  Thomas  Richardson  a  large  sum  of  money,  to  wit, 
the  sum  of  ten  shillings,  of  the  moneys  of  the  said  Thomas 
Richardson,  with  intent  then  and  there  to  cheat  and  defraud  him 
thereof;  whereas,  in  truth  and  in  fact,  the  said  Adam  Young  the 
younger  was  not,  at  the  time  he  so  falsely  pretended  as  last  afore- 
said, an  authorized  agent  of  the  said  executive  committee  for 
granting  space  in  the  last  mentioned  building,  as  he  the  said 
Adam  Young  the  younger  then  and  there  as  last  aforesaid  well 
knew.  And  whereas,  in  truth  and  in  fact,  the  said  Adam  Young 
the  younger  had  not,  at  the  time  he  falsely  pretended  as  last 
aforesaid,  any  power,  authority,  or  right  whatsoever,  to  allot  any 
space  whatever  in  the  said  last  mentioned  building  to  the  said 
Thomas  Richardson,  or  to  any  other  person,  as  he  the  said  Adam 
Young  the  younger,  at  the  time  he  so  falsely  pretended  as  last 
aforesaid,  well  knew;  to  the  great  damage  of  the  said  Thomas 
Richardson,  and  against  the  peace,  &c. 

Fourth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  before  the  committing  of  the  offence  next  herein- 
after mentioned,  to  wit,  on  the  day  aforesaid,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty,  an  application  was 
made  by  the  said  Thomas  Richardson  to  the  said  Adam  Young 
for  a  certain  space,  to  wit,  the  space  of  four  feet  square,  in  the 
building  intended  for  the  proposed  Great  Exhibition,  to  be 
holden  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
fifty-one,  to  wit,  the  proposed  Great  Exhibition  of  Works  of  In- 
dustry of  all  Nations.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  Adam  Young  the 
younger  afterwards,  to  wit,  on  the  day  aforesaid,  in  the  year  of  our 
616 


FALSE  PRETENCES.  (547) 

Lord  one  thousand  eight  hundred  and  fifty,  at  the  parish  afore- 
said, in  the  city  and  within  the  jurisdiction  aforesaid,  unlawfully, 
knowingly,  and  fraudulently  did  again  falsely  pretend  to  the 
said  Thomas  Richardson,  that  the  said  Adam  Young  the  younger 
then,  as  last  aforesaid,  had  power  to  allot  to  the  said  Thomas 
Richardson  the  space  in  the  said  last  mentioned  building,  so  ap- 
plied for  by  the  said  Thomas  Richardson  as  last  aforesaid,  by 
means  of  which  said  last  mentioned  false  pretences  the  said 
Adam  Young  the  younger  did  then  and  there,  as  last  aforesaid, 
unlawfully  attempt  and  endeavor  unlawfully  to  obtain  from  the 
said  Thomas  Richardson  a  large  sum  of  money,  to  wit,  the  sum 
of  ten  shillings,  of  the  moneys  of  the  said  Thomas  Richardson, 
with  intent  then  and  there  to  cheat  and  defraud  the  said  Thomas 
Richardson  thereof;  whereas,  in  truth  and  in  fact,  the  said  Adam 
Young  the  younger  had  not,  at  the  time  he  so  falsely  pretended 
as  last  aforesaid,  any  power,  authority,  or  right  whatever,  to  allot 
any  space  whatever  in  the  last  mentioned  building  to  the  said 
Thomas  Richardson,  or  to  any  other  person,  as  the  said  Adam 
Young  the  younger,  at  the  time  he  so  falsely  pretended  as  last 
aforesaid,  well  knew ;  to  the  great  damage  of  the  said  Thomas 
Richardson,  and  against  the  peace,  &c. 

(547)  Pretence  that  prisoner  was  an  unmarried  man^  and  that  hav- 
ing been  engaged  to  her,  the  prosecutrix^  and  the  engagement 
broken  off,  he  was  entitled  to  support  an  action  of  breach  of 
promise  against  her,  by  ivhich  means  he  obtained  money  from 
her.{y~) 

That  S.  M.  C,  otherwise  called  S.  M.,  &c.,  on  &c.,  unlawfully 
did  falsely  pretend  to  the  said  A.  C,  then  and  there  being  a  sin- 
gle woman,  that  he  was  a  single  and  unmarried  man,  and  thereby 
then  and  there  obtained  a  promise  of  marriage  from  the  said  A. 
C,  to  wit,  a  promise  that  in  consideration  that  he  would  marry 

(y)  R.  V.  Copeland,  1  C.  &  M.  516. 

Held  (Lord  Denman,  C.  J.,  and  Maule,  J.),  that  the  fact  of  the  prisoner  pay- 
ing his  addresses  was  sufficient  evidence  for  the  jury,  on  which  they  might  find 
the  first  pretence  that  the  prisoner  was  a  single  man  and  in  a  condition  to 
marry ;  and  per  Maule,  J.,  that  this  was  sufficient  evidence  on  which  to  find  the 
falseness  of  the  other  pretence,  that  he  was  entitled  to  maintain  his  action  for 
breach  of  promise  of  marriage,  and  that  such  latter  false  pretence  was  a  suffi- 
cient false  pretence  within  the  statute. 

617 


(548)  OFFENCES  AGAINST  PROPERTY. 

her  she  would  marry  him.  And  the  jurors,  &c.,  do  further  pre- 
sent, that  the  said  A.  C,  afterwards,  to  wit,  on  the  day  and  year, 
&c.,  wholly  refused  to  marry  the  said  S.  M.  C,  otherwise  called, 
&c.  And  the  jurors,  &c.,  do  further  present,  that  the  said  S.  M. 
C,  otherwise  called,  &c.,  afterwards,  to  wit,  on  the  day  and  year, 
&c.,  unlawfully  did  falsely,  knowingly,  and  designedly  pretend  to 
the  said  A.  C.  that  he  was,  at  the  time  of  the  said  promise  and 
refusal  in  this  count  mentioned,  a  single  and  unmarried  man,  and 
entitled  to  bring  and  maintain  an  action  for  breach  of  the  said 
promise  of  marriage  against  her  the  said  A.  C,  by  means  of 
which  said  last  mentioned  false  pretence  in  this  count  mentioned, 
the  said  S.  M.  C,  otherwise  called,  &c.,  did  then  and  there  un- 
lawfully obtain  from  the  said  A.  C.  one  promissory  note  of  the 
Governor  and  Company  of  the  Bank  of  England,  for  the  pay- 
ment of  one  hundred  pounds,  &c.  {describing  various  kinds  of 
money  and  securities),  of  the  property  and  moneys  of  the  said  A. 
C,  with  intent  then  and  there  to  cheat  and  defraud  her  the  said 
A.  C.  of  the  same  ;  whereas,  in  truth  and  in  fact,  the  said  S.  M. 
C,  otherwise  called,  &c.,  was  not,  at  the  time  of  the  said  promise 
of  marriage  in  this  count  mentioned,  or  at  the  time  of  the  said 
refusal  in  this  count  mentioned,  a  single  man  or  an  unmarried 
man,  nor  was  he,  at  either  of  those  times  or  at  any  other  timei 
entitled  to  bring  or  maintain  an  action  for  breach  of  the  said 
promise  of  marriage  against  the  said  A.  C,  &c.,  against,  &c. 
{Conclude  as  in  hook  1,  chapter  3.) 

(548)  Pretence  that  defendants  were  the  agents  of  P.  iV.,  who  was 
the  owner  of  certain  stock  and  land,  ^e.,  the  latter  of  which 
tvas  in  fact  mortgaged,  (^z) 

That  R.  H.  and  J.  C,  &c.,  on,  &c.,  at,  &c.,  being  persons  of  an 
evil  disposition,  and    devising  and   intending   by  unlawful  ways 

(z)  This  form  vrns  sustained  in  Com.  v.  Harley,  7  Met.  4G4. 

Dewey,  J. :  "  As  to  the  first  exception  taken  to  the  instruetions  given  to  the 
jury,  at  the  trial,  we  think  the  principle  stated  in  Yoim':^  and  others  v.  the  King, 
8  T.  R.  98,  referred  to  by  the  counsel  for  the  defendant,  sustains  the  ruling, 
rather  than  the  objection  to  it.  The  argument  for  the  phiintiifs  in  error  there 
was,  that  the  words  could  not  have  been  spoken  by  all,  and  that  one  of  them 
could  not  be  affected  by  words  spoken  by  another,  each  beiijg  answerable  for 
himself  only.  But  it  was  held,  that  '  if  they  all  acted  together,  and  shared  in 
the  same  transaction,'  they  committed  the  offence  jointly.     Grose,  J.,  said : 

518 


FALSE   PRETENCES.  (548) 

and  means  to  obtain  and  get  into  their  hands  and  possession  the 
goods,  merchandise,  chattels,  and  effects  of  the  honest  and  good 

*  Every  crime,  which  may  be  in  its  nature  joint,  qjay  be  so  laid.  Here  it  is 
stated  that  all  the  defendants  committed  this  offence,  by  all  joining  in  the  same 
plan  ;  they  were  all  jointly  concerned  in  defrauding  the  prosecutor  of  his 
money.'  Now  it  seems  to  us,  that  if  two  may  be  indicted  for  the  words  spoken 
by  one  in  the  presence  of  the  other,  it  ajjpearing  that  they  came  to  act  in  con- 
cert, it  establishes  the  position  that  all  which  is  necessary  to  cause  the  liability 
to  attach  to  an  individual  of  having  participated  in  making  false  pretences,  is 
his  cooperation  and  acting  in  concert  in  the  general  purpose  ;  and  the  concert 
and  cooperation  may  be  shown,  although  one  said  nothing  by  way  of  assenting 
to  or  expressing  his  concurrence  in  the  false  pretences.  If  this  be  so,  it  seems 
necessarily  to  follow  that  if  A.  procures  B.  to  go  to  C,  and  with  a  false  pre- 
tence, of  which  A.  is  conversant,  to  obtain  the  goods  of  C,  A.  is  guilty  in  the 
matter  of  obtaining  these  goods  by  false  pretences ;  and  whether  A.  be  outside 
or  Avithin  the  door  of  the  shop  of  C.  is  immaterial ;  all  that  is  necessary  to  be 
proved  is,  that  he  is  at  the  time  acting  in  concert  with  B.,  and  aiding  in  putting 
forth  the  false  pretences,  and  that  the  precise  false  pretences  and  representa- 
tions charged  in  the  indictment  be  made  with  his  knowledge,  concurrence,  and 
direction.     The  instruction  on  this  point  was  therefore  correct. 

"The  next  instruction  to  the  jury,  which  is  objected  to,  was  in  these  words  : 
'  It  is  not  necessary  for  the  government  to  prove  that  the  defendants,  or  either 
of  them,  obtained  the  goods  on  their  own  account,  or  that  they,  or  either  of 
them,  derived,  or  expected  to  derive,  personally,  any  pecuniary  benefit  there- 
from ;  but  that  if  the  jury  were  satisfied  that  the  defendants  obtained  said 
goods  by  means  of  said  false  pretences,  for  the  sole  use  and  benefit  of  said  P. 
Harley,  this  was  sufficient  to  sustain  the  allegation  in  the  indictment,  that  the 
defendants  obtained  said  goods  by  said  false  pretences.' 

"  It  is  not  contended  by  the  defendant's  counsel  that  it  was  necessary,  in 
order  to  support  the  indictment,  for  the  government,  to  prove  that  the  defendant 
intended  any  pecuniary  gain  or  personal  benefit.  That  the  contrary  is  the  rule 
is  very  clear,  and  was  fully  conceded  in  the  argument.  But  the  ground  assumed 
is  that  of  a  variance  between  the  matter  set  forth  in  the  indictment,  and  the 
proof  showing  that  the  goods  were  obtained  for  the  sole  use  of  P.  Harley.  I 
should  doubt,  from  the  report  of  the  case,  whether  the  question  of  variance  was 
distinctly  raised  at  the  trial.  The  point  seems  rather  to  have  been,  whether  a 
party  charged  with  obtaining  goods  by  false  pretences  must  not  be  shown  to 
have  obtained  them  thus  for  his  own  use  or  pecuniary  benefit.  If,  however,  we 
look  at  the  question  as  one  of  variance,  we  think  the  exception  cannot  prevail. 
The  only  allegation  which  is  supposed  to  conflict  with  the  evidence  that  the 
goods  were  obtained  for  the  use  of  P.  Harley  is  this,  that  the  defendants,  '  de- 
vising and  intending  by  unlawful  means  to  get  into  their  hands  and  possession,' 
&c.  But  the  evidence  fully  sustained  the  allegation.  By  means  of  these  false 
pretences,  the  defendants  did  actually  obtain  and  get  into  their  hands  and 
possession  these  goods  ;  and  although  they  might  have  had  a  further  purpose 

519 


(548)  OFFENCES  AGAINST  PROPERTY. 

citizens  of  this  commonwealth,  and  with  intent  to  cheat  and  de- 
fraud one  G.  B.  B.,  one  D.  N.,  and  one  E.  H.  R.  L.,  all  of  said 
Boston,  Massachusetts,  and  copartners  in  trade,  transacting  busi- 
ness under  the  name,  firm,  and  style  of  G.  B.  B.  and  Company, 
did  then  and  there  unlawfully,  knowingly,  and  designedly  falsely 
pretend  and  represent  to  said  G.  B.  B.  and  Company,  that  they 
were  in  the  employment  of  one  P.  H.,  of  said  Boston,  trader ; 
that  said  P.  H.  was  possessed  of,  and  was  the  rightful  owner  of 
the  stock  of  goods  which  then  were  in  a  certain  shop,  situated  at 
the  corner  of  Hanover  Street  and  Union  Street  in  said  Boston, 
and  was  solvent  and  in  good  credit,  and  they  were  authorized  to 
buy  goods  in  the  name  of  said  P.  H.  by  said  P.  H.,  and  that 
said  R.  H.  was  authorized  to  give  promissory  notes  for  such 
goods,  in  the  name  of  and  in  behalf  of  said  P.  H.,  that  said  P. 
H.  was  a  man,  and  wanted  to  buy  goods  on  credit  of  said  G.  B. 
B.  and  Company,  in  the  fair  and  usual  honest  course  of  trade, 
with  intent  to  pay  honestly  for  them  at  the  expiration  of  the  term 
of  credit  upon  which  they  should  be  sold. 

And  the  said  B.,  N.,  and  L.,  then  and  there  believing  the  said 
false  pretences  and  representations,  so  made  as  aforesaid  by  the 
said  R.  H.  and  J.  C,  and  being  deceived  thereby,  were  induced, 
by  reason  of  the  false  pretences  and  representations  so  made  as 
aforesaid,  to  deliver,  and  did  then  and  there  deliver,  to  the  said 
R.  H.  and  J.  C.  for  said  P.  H.,  sundry  goods  and  merchandise  of 
great  value,  to  wit,  of  the  value  of  one  hundred  and  forty-seven 
dollars  and  sixty-six  cents,  to  wit,  one  piece  of  wool  black  cloth, 
one  piece  of  ribbed  cassimere  cloth,  one  piece  of  mixed  doeskin 
cloth,  six  pounds'  weight  of  thread,  and  one  pound  of  beaux- 
sewings,  of  the  proper  goods,  merchandise,  chattels,  and  effects 
of  said  B.,  N.,  and  L. 

of  eventually  delivering  them  to  P.  Ilarley  for  her  sole  use,  that  fact,  if  shown 
by  the  defendants,  would  not  avail  them  to  escape  from  this  indictment. 

"  The  remaining  exception  was,  that  the  false  pretences  were  not,  as  shown 
by  the  evidence,  made  personally  to  either  of  the  members  of  the  firm  of  George 
B.  Blake  and  Co.,  but  to  a  clerk  acting  for  them  in  their  shop,  and  by  him  com- 
municated to  one  of  the  firm.  This  objection  was  not  much  relied  on,  and  it 
cannot  be  sustained.  It  was  directly  overruled  in  the  case  of  Com.  v.  Call  (21 
Pick.  515),  where  it  was  held  that  a  false  representation  to  an  agent  who  com- 
municates it  to  his  principal,  who  is  infiuenced  by  it,  is  a  false  pretence  to  the 
principal." 

520 


FALSE    PRETENCES.  (548) 

And  the  said  C.  and  R.  H.  did  then  and  there  receive  and  ob- 
tain the  said  goods,  merchandise,  chattels,  and  effects,  of  the  said 
B.j  N.,  and  L.,  by  means  of  the  false  pretences  and  representa- 
tions aforesaid,  and  with  the  intent  to  cheat  and  defraud  the  said 
B.,  N.,  and  L.  of  the  same  goods  and  merchandise,  chattels,  and 
effects. 

Whereas,  in  truth  and  in  fact,  said  P.  H.  was  not  possessed  of, 
and  was  not  the  rightful  owner  of,  said  stock  of  goods  in  said 
store,  at  said  corner  of  Hanover  Street  and  Union  Street,  but,  be- 
fore that  time,  had  made,  executed,  and  delivered  divers,  to  wit, 
five,  mortgages  on  said  stock  and  her  property,  conditioned  for  the 
payment  of  large  sums  of  money,  to  wit,  sums  of  money  collec- 
tively amounting  to  more  than  the  value  of  said  stock  of  goods 
and  her  mortgaged  property  aforesaid ;  all  of  which  mortgages 
are  recorded  in  the  city  clerk's  office  of  said  City  of  Boston, 
according  to  law,  one  of  which  is  dated  on  the  fourteenth  day 
of  July,  in  the  year  eighteen  hundred  and  forty-one,  to  R.  H., 
administrator  on  the  estate  of  one  C.  H. ;  another  is  dated  on 
the  tenth  day  of  May,  in  the  year  eighteen  hundred  and  forty- 
two,  to  the  same  adtninistrator ;  and  another  is  dated  on  the  sec- 
ond day  of  June,  in  the  same  year,  to  the  same  administrator; 
and  another  of  said  mortgages  is  dated  on  the  twenty-ninth  day 
of  September,  in  the  same  year,  to  the  same  administrator;  and 
another  of  said  mortgages  is  dated  on  the  thirty-first  day  of  Oc- 
tober, in  the  same  year,  to  the  same  administrator  ;  and  said  P. 
H.  was  not  a  solvent  person  in  good  credit,  but  was  poor,  em- 
barrassed, and  unable  to  pay  the  debts  P.  H.  owed,  and  the  said 
P.  H.  was  not  a  man  but  a  woman,  named  P.  H.,  who  was  in- 
solvent and  unable  to  pay  her  debts,  and  she  did  not  want  to  buy 
goods  honestly  on  credit  in  a  fair  way  of  business,  and  said  C« 
and  R.  H.  did  not  want  for  her  to  buy  goods  honestly  in  a  fair 
course  of  trade  on  credit  of  said  B.,  N.,  and  L.,  with  intent  to 
pay  for  them  as  aforesaid,  but  to  cheat  them. 

And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  R.  H.  and  J.  C,  by  means  of  the  false  pretences 
aforesaid,  on  the  said  fourth  day  of  November,  in  the  year  of  our 
Lord  eighteen  hundred  and  forty-two,  at  Boston  aforesaid,  un- 
lawfully, knowingly,  and  designedly  did  receive  and  obtain  from 
said  B.,  N.,  and   L.  the  said  goods,  merchandise,  chattels,  and 

521 


(549)  OFFENCKS  AGAINST  PROPERTY. 

effects  of  the  proper  goods,  merchandise,  chattels,  and  effects  of 
the  said  B.,  N.,  and  L.,  with  intent  to  defraud  thena  of  the  same, 
against,  &c.,  and  contrary,  &c.  (  Conclude  as  in  book  1,  chapter  3.) 

(549)  TJiat  defendant  possessed  a  capital  of  eight  thousand  dollars, 
which  had  come  to  him  tlirough  his  tvife,  it  being  her  estate, 
and  that  a  part  of  it  had  already  come  into  his  possession, 
and  a  part  would  come  into  his  possession  in  the  month  then 
7iext  ensuing,  ^c.(^a')     First  count. 

That  J.  A.  B.,  late  of  the  said  county,  trader,  maliciously  and 
wickedly  devising  and  intending  to  cheat  W.  H.  A.  and  E.  R. 

(a)  This  was  the  indictment  in  Com.  v.  Burdick  (2  Barr,  163),  with  the  excep- 
tion of  the  introduction  in  the  text  of  the  "  scienter  "  after  the  allegation  of 
the  falsity  of  the  pretences.  The  statute  in  this  case  received  an  extremely 
liberal  construction  from  Gibson,  C.  J. :  "  The  rule  of  the  common  law,"  he  said, 
"  that  cheating  in  private  transactions  Avithout  affecting  the  public,  must,  to  be 
indictable,  have  been  effected  by  artful  devices  or  false  tokens,  was  found  to  be 
too  narrow  for  the  business  of  the  world,  and  the  English  Statute,  20  Geo.  II. 
c.  29,  which  has  given  place  to  the  7  Geo.  IV.  c.  92,  s.  53,  was  enacted  to  extend 
the  limits  of  the  offence.  From  these,  our  act  of  1842,  §  21,  seems  to  have  been 
taken,  and  decisions  on  the  clause  in  the  first,  which  declares  it  an  indictable 
offence  to  get  money,  chattels,  or  securities  from  another,  '  by  false  pretence  or 
pretences,'  or  in  the  second,  '  by  any  false  pretence,'  may  be  advantageously  ap- 
plied to  cases  here.  The  distinctions  taken  under  these  statutes,  between  cases 
sometimes  differing  in  almost  imperceptible  degrees,  are  nice  and  well  founded; 
and  though  not  authoritative  here,  may  help  us  in  attaining  a  sound  construction 
of  our  own  statute,  which  differs  from  either  of  its  models  very  little  in  sub- 
stance or  in  form.  It  Avould  be  a  waste  of  time  to  pass  those  decisions  in  review, 
as  they  are  collected  and  arranged  in  all  the  text  books  of  criminal  law ;  but  it 
may  be  collected  from  them,  that  a  professed  intent  to  do  an  act  which  the  party 
did  not  mean  to  do,  as  in  Rex  v.  Goodall  (R.  &  R.  461),  and  Rex  u.  Douglass  (1 
Mood.  C.  C.  462),  is  the  only  species  of  false  pretence  to  gain  property  which  is 
not  indictable.  These  two  cases  having  been  decided  by  the  twelve  judges,  are 
eminently  entitled  to  respect;  but  I  think  it  at  least  doubtful  whether  a  naked 
lie,  by  which  credit  has  been  gained,  would  not,  in  every  case,  be  deemed  within 
our  statute,  which  declares  it  a  cheat  to  obtain  money  or  goods  by  any  false  pre- 
tence tohatsoever.  Its  terms  are  certainly  more  emphatic  than  those  of  either  of 
the  English  statutes  ;  but  whether  a  false  pretence  of  mere  intent  be  within  them 
or  not,  it  is  certain  that  a  fraudulent  misrepresentation  of  the  party's  means  and 
resources  is  within  the  English  statutes,  and,  a  fortiori,  within  our  own.  In  Rex 
V.  Jackson  (3  Campb.  370),  it  was  held  to  be  an  offence  to  obtain  goods  by  giving 
a  check  on  a  banker  with  whom  the  drawer  kept  no  cash.  Of  the  same  stamp  is 
the  King  v.  Parker  (2  C.  &  P.  825)  ;  but  Regina  v.  Henderson  and  another  (1  C. 
&  M.  183),  is  still  more  to  the  purpose.    The  prisoners  falsely  pretended  that  one 

622 


FALSE   PRETENCES.  (549) 

of  their  goods  and  merchandise,  on,  &c.,  at  &c.,  did  falsely,  un- 
lawfully, knowingly,  designedly,  and  fraudulently  pretend  to  the 
said  W.  H.  A.  and  the  said  E.  R.,  that  he  the  said  J.  A.  B.  pos- 
sessed a  capital  of  eight  thousand  dollars,  Ihat  the  said  eight 
thousand  dollars  had  come  to  him  through  his  wife,  it  being  her 
estate,  and  that  a  part  of  it  had  already  come  into  his  posses- 
sion, a  part  would  come  into  his  possession  in  the  month  then 
next  ensuing,  and  that  for  the  remaining  part  thereof  he  would 
be  obliged  to  wait  for  a  short  time;  whereas,  in  truth  and  iact, 
he,  the  said  J.  A.  B.,  did  not  then  possess  a  capital  of  eight 
thousand  dollars,  nor  had  eight  thousand  dollars  come  to  him 
through  his  wife,  it  being  her  estate,  a  part  of  which  had  already 
come  into  his  possession,  a  part  would  come  into  his  possession  in 
the  month  then  next  ensuing,  while  for  there  maining  part  thereof 
he  would  be  obliged  to  wait  for  a  short  time,  as  he,  the  said  J. 
A.  B.,  did  then  and  there  falsely  pretend  to  the  said  W.  H.  A. 
and  the  said  E,  R, ;  of  the  falsity  of  which  said  pretences  he 
the  said  J.  A.  B.  then  and  there  well  knew.  And  the  inquest, 
&c.,  do  further  present,  that  the  said  J.  A.  B.,  afterwards,  to  wit, 
on  the  day  and  year  aforesaid,  at  the  county  and  within  the 
jurisdiction  aforesaid,  by  the  said  false  pretences  aforesaid,  did 
then  and  there  unlawfully,  fraudulently,  and  designedly  obtain 
from  the  said  W.  H.  A.  and  E.  R.  divers  goods  and  merchandise, 
to  wit,  six  pieces  rich  satin  stripe  silk,  being  together  of  the  value 
of  one  hundred  and  four  dollars,  and  one  piece  of  striped  cloaking, 
of  the  value  of  fifty  dollars,  being  then  and  there  the  property  of  the 
said  W.  H.  A.  and  E.  R.,  with  intent  to  defraud  the  said  W.  H. 
A.  and  E.  R.  of  the  same,  to  the   great  damage  of  the   said  W. 

of  them  was  possessed  of  twelve  pounds,  which  he  agreed  to  give  for  his  con- 
federate's horse,  for  which  it  was  proposed  that  the  prosecutor  should  exchange 
his  mare ;  and  this  was  held  to  be  clearly  a  false  pretence  within  the  statute. 
Now  the  defendant  is  charged  in  the  indictment  before  us,  with  having  wilfully 
misrepresented  that  he  had  a  capital  of  eight  thousand  dollars,  in  right  of  his 
wife ;  that  a  part  of  it  was  already  received ;  that  another  part  of  it  would  be 
received  in  the  course  of  a  month ;  and  that  the  residue  would  be  received 
shortly  afterwards  ;  and  if,  as  was  said  in  Mitchell's  case  (2  East,  P.  C.  80),  a 
false  pretence  is  within  the  English  statute,  wherever  it  has  been  the  efficient 
cause  of  obtaining  credit,  the  false  pretence  before  us  is  within  our  own."  See 
in  general  Wh.  C.  L.  §  2102. 

523 


(551)  OFFENCES  AGAINST  PROPERTY. 

H.  A.  and  the  said  E.  R.,  contrary,  &c.,  and  against,  &c.     {Con- 
clude as  in  book  1,  chapter  3.) 

(550)  Second  count.    Tliat  defendant  had  a  capital  of  $8,000,  which 
came  through  his  wife. 

And  the  inquest,  &c.,  do  further  present,  that  the  said  J.  A.  B., 
wickedly  and  fraudulently  devising  and  intending  as  aforesaid  to 
cheat  and  defraud  the  said  W.  H.  A.  and  E.  R.  of  their  goods 
and  merchandise,  on  the  day  and  year  aforesaid,  at  the  county 
and  within  the  jurisdiction  aforesaid,  did  falsely,  designedly,  and 
fraudulently  pretend  to  the  said  W.  H.  A.  and  E.  R.,  that  he  the 
said  J.  A.  B.  possessed  a  capital  of  eight  thousand  dollars,  which 
said  eight  thousand  dollars  had  come  to  him  through  his  wife,  it 
being  her  estate  ;  whereas,  in  truth  and  fact,  he  the  said  J.  A.  B. 
did  not  then  and  there  possess  a  capital  of  eight  thousand  dol- 
lars, nor  had  eight  thousand  dollars  come  to  him  through  his  wife, 
nor  had  she,  his  wife,  as  aforesaid,  an  estate  of  eight  thousand  dol- 
lars, as  he  the  said  J.  A.  B.  did  then  and  there  falsely  pretend  to  the 
said  W.  H.  A.  and  the  said  E.  R.,  of  the  falsity  of  which  said  pre- 
tences, he  the  said  J.  A.  B.  then  and  there  well  knew.  And  the 
inquest,  &c.,  do  further  present,  that  the  said  J.  A.  B.,  afterwards, 
to  wit,  on  the  day  and  year  aforesaid,  at  the  county  and  within 
the  jurisdiction  aforesaid,  did,  unlawfully,  knowingly,  and  fraudu- 
lently obtain  from  the  said  W.  H.  A.  and  the  said  E.  R.  divers 
goods  and  merchandise,  to  wit,  six  pieces  of  rich  satin  stripe  silk, 
together  of  the  value  of  one  hundred  and  four  dollars,  and  one 
piece  of  striped  cloaking,  of  the  value  of  fifty  dollars,  being  then 
and  there  the  property  of  the  said  W.  H.  A.  and  E.  R.,  with  in- 
tent to  defraud  the  said  W.  H.  A.  and  E.  R.  of  the  same,  to  the 
great  damage  of  the  said  W.  H.  A.  and  the  said  E.  R.,  contrary, 
&c.,  and  against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(551)   Third  count.     That  defendayit  had  a  capital  of  $8,000. 

That  the  said  J.  A.  B.,  wickedly  and  fraudulently  devising  and 
intending  as  aforesaid  to  cheat  and  defraud  the  said  W.  H.  A. 
and  E.  R.  of  their  goods  and  merchandise,  on  the  day  and  year 
aforesaid,  at  the  county  aforesaid,  and  within  the  jurisdiction 
aforesaid,  did  falsely,  designedly,  and  fraudulently  pretend  to  the 
said  W.  H.  A.  and  the  said  E.  R.,  that  he  the  said  J.  A.  B.  then  and 
524 


FALSE   PRETENCES.  (552) 

there  possessed  a  capital  of  eight  thousand  dollars;  whereas,  in 
truth  and  in  fact,  the  said  J.  A.  B.  did  not  then  and  there  possess 
a  capital  of  eight  thousand  dollars,  as  he  the  said  J.  A.  B.  then 
and  there  did  falsely  pretend  to  the  said  W.  H.  A.  and  the  said 
E.  R.  And  the  inquest,  &c.,  do  further  present,  that  the  said  J. 
A.  B.  did  then  and  there  unlawfully,  knowingly,  and  fraudu- 
lently obtain  from  the  said  W.  H.  A.  and  the  said  E.  R.  divers 
goods  and  merchandise,  to  wit,  six  pieces  of  striped  silk,  being 
together  of  the  value  of  one  hundred  and  four  dollars,  and  one 
piece  of  striped  cloaking  of  the  value  of  fifty  dollars,  being  then 
and  there  the  property  of  the  said  W.  H.  A;  and  the  said  E.  R., 
with  intent  to  defraud  the  said  W.  H.  A.  and  the  said  E.  R.  of 
the  same,  to  the  great  damage  of  the  said  W.  H.  A.  and  the  said 
E.  R,,  contrary,  &c.,  and  against,  &c.  ( Conclude  as  in  book  1, 
chapter  3.) 

(552)  Pretence  that  defendant  ivas  zvell  off  and  free  fro7ii  debt,  ^e.Qi) 

That  A.  G.  D.,  &c.,  on,  &c.,  at,  &c.,  unlawfully  and  wickedly 
devising  and  intending  to  cheat  and  defraud  one  W.  F.  of  his 
goods,  moneys,  chattels,  and  property,  unlawfully,  fraudulently, 
and  designedly  did  falsely  pretend  to  the  said  W.  F.,  that  he  the 
said  A.  G.  D.  had  paid  every  dollar  of  the  old  score  that  he  owed 
in  Philadelphia,  that  he  was  well  off,  and  that  he  was  very  rich, 
and  had  a  great  deal  of  property  in  Kentucky.  Whereas,  in  truth 
and  fact,  he  the  said  A.  G.  D.  had  not  paid  every  dollar  of  the  old 
score  that  he  owed  in  Philadelphia,  and  was  not  well  off,  and  was 
not  very  rich,  but  on  the  contrary  was  very  poor,  and  did  not  own 
a  great  deal  of  property  in  Kentucky  ;  and  he  Ihe  said  A.  G.  D. 
then  and  there  well  knew  the  said  pretence  and  pretences  to  be 
false  ;  by  color  and  means  of  which  said  false  pretence  and  pre- 
tences, he  the  said  A.  G.  D.  did  then  and  there  unlawfully  obtain 
from  the  said  W.  F.  one  black  mantilla  of  the  value  of  twenty-five 
dollars,  one  garnet  mantilla  of  the  value  of  twenty  dollars,  one 
black  silk  mantilla  of  the  value  of  fourteen  dollars,  one  black  em- 
broidered mantilla  of  the  value  of  fourteen  dollars,  two  plain  silk 

(h)  Com.  V.  Daniels,  Phil.,  1848.  Under  this  indictment  the  defendant  was 
convicted  in  Philadelphia,  and  sentenced.  A  writ  of  error  was  afterwards  taken 
in  the  Supreme  Court  (the  assignment  of  error  being  confined  to  the  sentence), 
and  the  judgment  of  the  court  below  was  affirmed. 

'525 


(553)  OFFENCES  AGAINST  PROPERTY. 

mantillas  of  the  value  of  twenty-four  dollar?,  two  figured  silk  man- 
tillas of  the  value  of  eighteen  dollars,  twenty-six  yards  and  a  half 
of  striped  silk  of  the  value  of  forty-three  dollars  and  six  cents, 
two  silk  shawls  of  the  value  of  twenty-four  dollars,  two  Ciishtnere 
shawls  of  the  value  of  twenty  dollars,  two  net  bags  of  the  value  of 
eight  dollars,  two  velvi-t  bags  of  the  value  of  eight  dollars,  twelve 
yards  of  figured  silk  of  the  value  of  nineteen  dollars  and  fifty 
cents,  one  trunk  of  the  value  of  one  dollar  and  fifty  cents,  being 
together  of  the  value  of  two  hundred  and  thirty-nine  dollars  and 
six  cents,  being  then  and  there  the  property  of  the  said  W.  F., 
with  intent  to  cheat  and  defraud  the  said  W.  F.,  to  the  great 
damage  of  the  said  W.  F.,  contrary,  &c.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chapter  3.) 

(553)  Second  count.     Negativing  the  pretence  more  fully. 

That  the  said  A.  G.  D.,  &c.,  on,  &c.,  at,  &c.,  unlawfully  and 
wickedly  designing  and  intending  to  cheat  and  further  defraud 
the  said  W.  F.  of  his  goods,  moneys,  chattels  and  property,  un- 
lawfully and  designedly  did  further  falsely  pretend  to  the  said  W. 
F.,  that  he  the  said  A.  G.  D.  had  paid  every  dollar  of  the  old 
score  that  he  owed  in  Philadelphia  (meaning  thereby  that  he  paid 
and  discharged  all  the  old  debts  which  he  owed  in  Philadelphia, 
and  all  debts  which  he  had  previously  contracted  in  Philadel- 
phia), that  he  was  well  off  (meaning  thereby  that  he  had  ample 
means),  that  he  was  rich,  and  had  a  great  deal  of  property  in  the 
State  of  Kentucky  (meaning  thereby  that  he  was  a  person  of 
great  w^ealth).  Whereas,  in  truth  and  in  fact,  he  the  said  A.  G. 
D.  had  not  then  and  there  paid  off  every  dollar  of  the  old  debts 
which  he  owed  in  Philadelphia,  and  had  not  paid  off  all  debts 
which  he  had  previously  contracted  in  Philadelphia,  but  on  the 
contrary  then  and  there  owed  and  still  does  owe  large  sums  of 
money  to  various  persons,  as  follows:  Seven  hundred  and  fifty- 
eight  dollars  and  seventy-eight  cents  to  J.  M.  O.,  J.  T.,  and  S.  B. 
D.,  trading  as  O.  and  T. ;  ten  hundred  and  forty  dollars  and 
eighteen  cents  to  S.  W.  A.,  G.  W.  J.,  and  W.  F.,  trading  as  A., 
J.  and  Co. ;  eight  hundred  and  twenty-two  dollars  and  twenty- 
two  cents  to  R.  L.  and  H.  J.,  trading  as  L.  and  J.;  three  hun- 
dred and  ninety  dollars  and  twenty-four  cents  to  I.  H.  and  W.  J. 
W.,  trading  as  H.  and  W.  ;  four  hundred  and  forty-one  dollars 
52G 


FALSE    PRETENCES.  (554) 

and  thirty-four  cents  to  R.  D.  W.,  Y.,  J.  A.,  J.  B.,  and  H.  W., 
trading  as  W.  and  A. ;  three  hundred  and  ninety-seven  dollars  and 
fifty-one  cents  to  R.  W.  D.  T.,  W.  S.  P.,  and  C.  B.  T.,  trading  as 
T.,  P.,  and  T. ;  eigfity-five  dollars  and  twenty-six  cents  to  R,J.  T. 
and  O.  E.,  trading  as  'J\  and  E. ;  and  he  ihe  said  A.  G.  D.  was 
not  well  off,  but  on  the  contrary  was  very  poor,  and  he  the  said 
A.  G.  D.  was  not  rich,  but  on  the  contrary  was  then  insolvent 
and  unable  to  pay  his  debts,  and  he  the  said  A.  G.  D.  had  not 
then  a  great  deal  of  pro|)erty  in  Kentucky ;  by  color  and  means 
of  which  said  false  pretence  and  pretences,  he  the  said  A.  G.  D. 
did  then  and  there  unlawfully  obtain  fron:i  the  said  W.  F.  the 
goods  and  chattels,  property,  and  merchandise  in  the  aforesaid 
first  count  mentioned,  with  intent  to  cheat  and  defraud  the  said 
W.  F.,  to  the  great  damage  of  the  said  W.  F.,  contrary,  &c.,  and 
against,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(554)    That  certain  j^roperty  of  the  defendant  was  unincumbered^ 
and  thatjie  himself  was  free  from  debts  and  liabiUfies.(^a') 

That  before  the  commission  of  the  offence  hereinafter  men- 
tioned, one  R.  H.  C.  was  possessed  of  and  entitled  to  a  certain 
reversionary  interest,  to  wit,  a  certain  reversionary  interest  of  and 
in  and  to  one  third  of  a  certain  sum  of  ten  thousand  pounds, 
three  per  cent,  annuities,  expectant  on  the  death  of  one  R.  C, 
and  that  the  said  R.  H.  C.  before  the  commission  of  the  offence 
hereinafter  mentioned,  to  wit,  on  the  first  day  of  November,  in 
the  year  of  our  Lord  duly  executed  a  certain  mortgage  of 

the  said  reversionary  interest  to  one  R.  S.  H.  H.,  as  and  for  and 
by  the  way  of  security  to  the  said  R.  S.  H.  H.,  for  the  repayment 
to  him  of  a  certain  sum  of  money,  to  wit,  the  sum  of  one  -thou- 
sand pounds  and  interest,  and  that  the  said  R.  H.  C.  afterwards, 
and  before  the  commission  of  the  said  offence,  to  wit,  on  the 
twenty-fifth  day  of  October,  in  the  year  of  our  Lord  charged 

the  said  reversionary  interest,  to  which  he  was  so  entitled  as 
aforesaid,  with  the  payment  of  a  certain  other  sum  of  money,  to 
wit,  the  sum  of  five  hundred  pounds  and  interest.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  R.  H.  C,  late  of  the  parish  of  Saint  Pancras,  in 
the  County  of  Middlesex,  gentleman,  well  knowing  the  premises, 
(«)   5  Cox,  C.  C.  Appendix,  p.  xc. 

527 


(554)  OFFENCf:s  against  property. 

and  contriving  and  intending  to  cheat  and  defraud,  on  the  thir- 
teenth day  of  March,  in  the  year  of  our  Lord  at  the  parish 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  did  apply 
to  and  request  one  J.  P.  to  advance  and  lend  to  him,  the  said  R. 
H.  C,  a  certain  sum  of  money,  to  wit,  the  sum  of  two  hundred 
pounds,  and  did  then  and  there  unlawfully  and  knowingly  falsely 
pretend  to  the  said  J.  P.  that  the  said  R,.  H.  C.  had  not  then  in- 
cumbered his  said  reversionary  interest,  and  that  the  said  R.  H. 
C.  had  not  borrowed  any  money  from  any  other  person  on  the 
security  of  the  said  reversionary  interest  of  the  said  R.  H.  C. ; 
by  means  of  which  said  false  pretences  the  said  R.  H.  C.  did 
then  and  there  unlawfully,  knowingly,  and  designedly  fraudu- 
lently obtain  of  and  from  the  said  J.  P.  one  order  for  the  pay- 
ment of  money,  to  wit,  for  the  payment  and  of  the  value  of  two 
hundred  pounds,  and  one  piece  of  paper,  of  the  value  of  one  penny, 
and  the  sum  of  two  hundred  pounds  in  money,  of  the  property, 
goods,  chattels,  and  moneys  of  the  said  J.  P.,  with  intent  then 
and  there  to  cheat  and  defraud  him  of  the  same ;  whereas,  in 
truth  and  in  fact,  the  said  R.  H.  C,  at  the  time  he  so  falsely  pre- 
tended as  aforesaid,  had  incumbered,  and  well  knew  that  he  had 
incumbered,  his  said  reversionary  interest ;  and  whereas,  in  truth 
and  in  fact,  the  said  R.  H.  C,  at  the  time  he  so  falsely  pretended 
as  aforesaid,  had  borrowed,  and  well  knew  that  he  had  borrowed, 
certain  money  from  certain  persons,  other  than  the  said  J.  P., 
upon  the  security  of  the  said  reversionary  interest,  to  wit,  the 
said  sum  of  one  thousand  pounds,  of  and  from  the  said  R.  S.  H. 
H.,  and  the  said  other  sum  of  five  hundred  pounds,  of  and  from 
one  J.  J. ;  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace,  &c. 

Second  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  R.  H.  C,  being  possessed  of  and  entitled  to 
a  reversionary  interest  in  a  certain  sum  of  ten  thousand  pounds, 
three  per  cent,  annuities,  expectant  upon  the  decease  of  one 
R.  C,  did  apply  to  and  request  the  said  J.  P.  to  advance  and 
lend  money  to  him  the  said  R.  H.  C,  to  wit,  on  the  thirty-first 
day  of  May,  in  the  year  of  our  Lord  at  the  parish  afore- 

said, and  within  the  jurisdiction  of  the  said  court,  and  did  then 
628 


FALSE  PRETENCES.  (554) 

and  there  unlawfully,  knowingly,  and  designedly  falsely  pretend 
to  the  said  J.  P.  that  the  said  R.  H.  C.  had  never  in  any  manner 
theretofore  mortgaged,  assigned,  or  incumbered  his  reversionary 
interest  in  the  said  ten  thousand  pounds,  three  per  cent,  annuities, 
or  any  part  thereof;  that  the  said  R.  H.  C.  had  never  been  a 
party  to  any  deed  or  instrument  whereby  his  interest  in  the  said 
stock  had  or  could  have  been  in  any  manner  affected ;  that  the 
said  R.  H.  C.  was  not  then  liable  on  any  deed  or  instrument  as 
surety  for  any  person  whomsoever ;  that  the  said  R.  H.  C.  had 
not  then  borrowed  any  money  whatsoever,  except  from  the  said 
J.  P.,  and  that  the  said  R.  H.  C.  did  not  then  owe,  and  was  not 
then  liable,  for  a  greater  amount  of  debts,  exclusive  of  a  sum  of 
four  hundred  pounds,  which  he  then  owed  to  the  said  J.  P.,  than 
the  sum  of  three  hundred  pounds ;  by  means  of  which  said  false 
pretences,  in  this  count  mentioned,  the  said  R.  H.  C.  did  then 
and  there  unlawfully,  knowingly,  and  designedly  fraudulently 
obtain  of  and  from  the  said  J.  P.  one  order  for  the  payment  of 
money,  to  wit,  for  the  payment  and  of  the  value  of  the  sum  of  fifty 
pounds,  and  one  piece  of  paper  of  the  value  of  one  penny,  and 
the  sum  of  fifty  pounds  in  money,  of  the  property,  goods,  chattels, 
and  moneys  of  the  said  J.  P.,  with  intent  to  cheat  and  defraud 
him  of  the  same ;  whereas,  in  truth  and  in  fact,  at  the  time  the 
said  R.  H.  C.  so  falsely  pretended  as  last  aforesaid,  he  had  mort- 
gaged, assigned,  and  incumbered  his  said  reversionary  interest  in 
the  said  sum  of  ten  thousand  pounds,  three  per  cent,  annuities, 
to  wit,  to  the  said  R.  S.  H.  H.  and  J.  J.,  for  the  purpose  of  secur- 
ing to  them  respectively  the  repayment  of  the  said  sums  of  one 
thousand  pounds  and  five  hundred  pounds  hereinbefore  men- 
tioned ;  and  whereas,  in  truth  and  in  fact,  at  the  time  the  said 
R.  H.  C.  so  falsely  pretended  as  last  aforesaid,  the  said  R.  H.  C. 
had  been,  and  then  was,  a  party  to  certain  deeds,  by  which  his 
said  reversionary  interest  in  the  said  sum  of  ten  thousand  pounds 
had  been  and  was  then  affected,  to  wit,  the  said  deeds  by  which 
the  repayment  of  the  said  sums  of  one  thousand  pounds  and  five 
hundred  pounds  was  charged  upon  his  said  reversionary  interest; 
and  whereas,  in  truth  and  in  fact,  at  the  time  the  said  R.  H.  C. 
so  falsely  pretejided  as  in  this  count  aforesaid,  the  said  R.  H.  C. 
was  liable  on  certain  bonds  as  surety  for  certain  persons,  to  wit, 
one  M.  S.  and  one  E.  J.,  to  wit,  in  two  several  sums  of  fifteen 
VOL.  I.—  34  529 


(554|)  OFFENCES  AGAINST  PROPERTY. 

thousand  pounds;  and  whereas,  in  truth  and  in  fact,  at  the  time 
the  said  R.  H.  C.  so  falsely  pretended  as  in  this  count  mentioned, 
the  said  R.  H.  C.  had  borrowed  certain  sums  of  money  from  cer- 
tain persons  other  than  the  said  J.  P.,  to  wit,  the  sum  of  five 
thousand  pounds  from  the  said  R.  S.  H.  H.,  and  the  sum  of  three 
thousand  pounds  from  the  said  J.  J. ;  and  whereas,  in  truth  and 
in  fact,  at  the  time  the  said  R.  H.  C.  so  falsely  pretended  as 
aforesaid,  the  said  R.  H.  C.  did  owe,  and  was  then  liable  for  a 
greater  amount  of  debts  than  the  sum  of  three  hundred  pounds, 
exclusive  of  any  money  which  he  then  owed  to  said  J.  P.,  that 
is  to  say,  the  said  R.  H.  C.  then  owed  to  the  said  R.  S.  H.  H.  a 
greater  sum  of  money  than  the  sum  of  three  hundred  pounds, 
to  wit,  the  sum  of  six  hundred  pounds,  and  the  said  R.  H.  C. 
then  owed  to  the  said  J.  J.  a  greater  sum  of  money  than  the  said 
sum  of  three  hundred  pounds,  to  wit,  the  sum  of  six  hundred 
pounds,  all  which  said  several  premises  the  said  R.  H.  C,  at  the 
time  he  so  falsely  pretended  as  aforesaid,  well  knew ;  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace,  &c. 

(554^)  False  -pretence  that  goods  tvere  unincumbered. Qa^ 

That  W.  M.,  on,  &c.,  at,  &c.,  unlawfully,  designedly,  and 
knowingly  did  falsely  pretend  unto  T.  M.  W.  that  the  goods  of 
him,  the  said  W.  M.,  were  unincumbered,  and  that  a  certain 
pretended  bill  of  sale  of  the  said  goods,  which  pretended  bill  of 
sale  the  said  W.  M.  then  delivered  to  the  said  T.  M.  W.,  was  a 
good  and  valid  bill  of  sale  of  the  said  goods  to  the  said  T.  M.  W. 
By  means  of  which  said  false  pretences  the  said  W.  M.  did 
then  and  there  unlawfully,'  designedly,  and  knowingly  obtain 
from  the  said  T.  M.  W.  £S  17s.  6d.  in  money,  with  intent  to  de- 
fraud, whereas,  in  truth  and  fact,  the  said  goods  of  him,  the  said 
W.  M.,  were  not  unincumbered,  nor  was  the  said  pretended  bill 
of  sale  a  good  and  valid  bill  of  sale  of  the  said  goods  to  the  said 
T.  M.  W.,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(n)   Sustained  in  R.  v.  Meakin,  11  Cox,  C.  C.  270. 
OoO 


FALSE  PRETENCES.  (555) 

(555)  Pretence  that  defendant  had  then  purchased  certain  property^ 
which  it  was  necessary  he  should  immediately  pay  for.(b') 
That  W.  J.,  late   of  the    parish    of   Chrlstchurch,    Newgate 
Street,  in  the  City  of  London,  laborer,  on  the  first  day  of  March, 
in  the  year  of  our  Lord  at  the  parish  aforesaid,  in  the  city 

aforesaid,  and  within  the  jurisdiction  of  the  said  court,  did  un- 
lawfully, fraudulently,  knowingly,  and  designedly  falsely  pretend 
to  one  S.  N.  that  the  said  W.J.  then  had  at  a  certain  place,  then 
called  and  known  by  the  name  of  Dixon's  Liars,  to  wit,  at  Dix- 
on's Liars,  at  Islington,  in  the  County  of  Middlesex,  and  within 
the  jurisdiction  of  the  said  court,  one  hundred  and  eight  sheep, 
which  the  said  W.  J.  had  then  purchased,  and  for  which  said 
one  hundred  and  eight  sheep  the  said  W.  J,  had  then  and  there 
to  pay  on  the  said  first  day  of  March,  to  wit,  on  the  day  and 
year  aforesaid,  and  within  the  jurisdiction  aforesaid,  by  means 
of  which  said  false  pretences  the  said  W.  J.  did  then  and  there, 
and  within  the  jurisdiction  aforesaid,  unlawfully,  knowingly,  and 
designedly  fraudulently  obtain  of  and  from  the  said  S.  N.,  of  the 
goods,  chattels,  moneys,  and  valuable  securities  of  the  said  S.  N., 
ten  pieces  of  the  current  gold  coin  of  this  realm,  called  sover- 
eigns; one  valuable  security,  to  wit,  an  order  for  the  payment  of, 
and  of  the  value  of  one  hundred  pounds;  one  other  valuable 
security,  to  wit,  one  other  order  for  the  payment  of,  and  of  the 
value  of  five  hundred  pounds  ;  one  other  valuable  security,  to  wit, 
one  other  order  for  the  payment  of  money,  to  wit,  one  other 
order  for  the  payment  of,  and  of  the  value  of  four  hundred 
pounds  ;  one  other  valuable  security,  to  wit,  one  other  order  for 
the  payment  of  money,  to  wit,  one  other  order  for  the  payment 
of,  and  of  the  value  of  three  hundred  pounds  ;  and  one  other  val- 
uable security,  to  wit,  one  other  order  for  the  payment  of  money, 
to  wit,  one  other  order  for  the  payment  of,  and  of  the  value  of 
six  hundred  pounds  ;  with  intent  then  and  there,  and  within  the 
jurisdiction  aforesaid,  to  cheat  and  defraud  the  said  S.  N.  of  the 
same  goods,  chattels,  moneys,  valuable  securities,  and  orders  for 
the  payment  of  money  respectively,  the  said  sums  of  money 
payable  and  secured  by  and  upon  the  said  valuable  securities 
and  orders  for  the  payment  of  money,  being  then  and  there  due 
(&)  4  Cox,  C.  C.  Appendix,  p.  xxxiii. 

631 


(555)  OFFENCES  AGAINST  PKOPERTY. 

and  unsatisfied  to  the  said  S.  N.,  the  proprietor  and  owner  of  the 
said  several  valuable  securities  and  orders  for  the  payment  of 
money  respectively  ;  whereas,  in  truth  and  in  fact,  the  said  W. 
J.  had  not,  at  the  time  when  the  said  W.  J.  so  obtained  the  said 
moneys,  and  the  said  several  valuable  securities  and  orders  for 
the  payment  of  money  from  the  said  S.  N.  as  aforesaid,  and 
when  the  said  W.  J.  made  the  said  false  pretences  as  aforesaid, 
one  hundred  and  eight  sheep  at  Dixon's  Liars,  at  Islington ;  and 
whereas,  in  truth  and  in  fact,  the  said  W.  J.  had  not  then  pur- 
chased the  said  one  hundred  and  eight  sheep ;  and  whereas,  in 
truth  and  in  fact,  the  said  W.  J.  had  not  then  to  pay  for  the  said 
one  hundred  and  eight  sheep,  to  wit,  on  the  said  first  day  of 
March ;  all  of  which  said  false  pretences  the  said  W.  J.,  at  the 
time  of  the  making  thereof,  well  knew  to  be  false  ;  to  the  great 
damage,  injury,  and  deception  of  the  said  S.  N.,  and  in  fraud  of 
the  said  S.  N.,  to  the  evil  example  of  all  others  in  the  like  case 
offending,  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace,  &c. 

Second  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  S.  N.  heretofore,  to  wit,  on  the*day  and 
year  aforesaid,  and  within  the  jurisdiction  aforesaid,  was  accus- 
tomed to,  and  from  time  to  time  and  at  various  times  did,  at 
the  request  of  the  said  W.  J.,  advance  and  intrust  divers  sums 
of  moneys  to  the  said  W.  J.  for  the  purpose  of,  and  to  enable  the 
said  W.  J.  to  pay  for  sheep,  after  the  said  W.  J.  had,  in  the  way 
of  his  trade,  purchased  the  same.  And  the  jurors  aforesaid,  on 
their  oath  aforesaid,  do  further  present,  that  the  said  W.  J.  here- 
tofore, to  wit,  on  the  said  first  day  of  March,  in  the  year  afore- 
said, in  the  city  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  well  knowing  the  premises,  did  unlawfully,  fraudulently, 
knowingly,  and  designedly  falsely  pretend  to  the  said  S.  N.  that 
the  said  W.  J.  had  theretofore,  and  before  the  making  the  false 
pretences  by  the  said  W.  J.  hereinafter  in  this  count  mentioned, 
purchased  for  himself  a  certain  number  of  sheep,  of  a  certain 
value,  to  wit,  of  the  value  of  five  hundred  pounds,  for  which  the 
said  W.  J.  had  to  pay  at  the  Bank  of  Messieurs  Pockington  and 
Company,  on  the  day  and  year  last  aforesaid,  a  certain  sum  of 
532 


FALSE  PRETENCES.  (555) 

money,  to  wit,  the  sum  of  five  hundred  pounds,  by  means  of 
which  last  mentioned  false  pretences  in  this  count  mentioned, 
the  said  W.  J.  did  then  and  there,  and  within  the  jurisdiction 
aforesaid,  unlawfully,  knowingly,  and  designedly  fraudulently 
obtain  of  and  from  the  said  S.  N.,  of  the  goods  and  chattels, 
moneys,  and  valuable  securities  of  the  said  S.  N.,  one  valuable 
security,  to  wit,  one  order  for  the  payment  of  money,  to  wit,  one 
order  for  the  payment  of,  and  of  the  value  of  five  hundred 
pounds,  with  intent  then  and  there,  at  the  time  of  the  making 
of  the  said  false  pretences  by  the  said  W.  J.  in  this  count  men- 
tioned, and  within  the  jurisdiction  of  the  said  court,  to  cheat  and 
defraud  the  said  S.  N.  of  the  said  valuable  security  and  order  for 
payment  of  money  in  this  count  mentioned,  the  said  sums  of 
money  in  this  count  payable,  and  secured  by  and  upon  the  said 
valuable  security  and  order  for  the  payment  of  money  in  this 
count  mentioned,  being  then  and  there,  to  wit,  at  the  time  of  the 
making  of  the  said  last  mentioned  false  pretences,  due  and  un- 
satisfied to  the  said  S.  N.,the  proprietor  and  owner  of  the  same; 
whereas,  in  truth  and  in  fact,  the  said  W.  J.  had  not  theretofore, 
and  before  the  making  of  the  said  false  pretences  by  the  said  W. 
J.  in  this  count  mentioned,  purchased  for  himself  a  certain  num- 
ber of  sheep,  of  the  value  of  five  hundred  pounds,  for  which  the 
said  W.  J.  had  to  pay  at  the  bank  of  Messieurs  Pockington 
and  Company,  on  the  day  and  year  last  aforesaid,  and  in  this 
count  mentioned,  the  said  sum  of  five  hundred  pounds,  which 
said  last  mentioned  false  pretences  the  said  W.  J.,  at  the  time  of 
the  making  thereof,  well  knew  to  be  false ;  to  the  great  damage, 
injury,  and  deception  of  the  said  S.  N.,  and  in  fraud  of  the  said 
S.  N.,  to  the  evil  example  of  all  others  in  the  like  case  offend- 
ing ;  contrary  to  the  statute  in  that  case  made  and  provided,  and 
against  the  peace,  &c. 

533 


(556)  OFFENCES  AGAINST  PROPERTY. 

(556)  Pretence  that  a  certain  draft  for  $7,700,  drawn  hy  a  house  in 
Charleston  on  a  house  in  Boston^  which  the  defendant  exhib- 
ited to  the  prosecutor,  had  been  protested  for  non-payment ; 
that  the  defendant  had  had  his  pocket  cut,  and  his  pocket-booh^ 
containing  $195,  stolen  from  it ;  that  a  draft  drawn  by  a  per- 
son in  Philadelphia,  which  the  defendant  showed  the  prosecu- 
tor, had  been  received  by  the  defendant  in  exchange  for  the 
protested  draft,  and  that  the  defendant  expected  to  receive  the 
money  on  the  last  mentioned  draft. (^c') 

That  E.  H.,  late,  &c.,  being  a  person  of  an  evil  disposition,  ill- 
name  and  fame,  and  of  dishonest  conversation,  and  devising  and 
intending  by  unlawful  ways  and  means  to  obtain  and  get  into 
his  hands  and  possession  the  moneys,  goods,  chattels,  and  effects 
of  the  honest  and  good  people  of  the  State  of  New  York,  to 
maintain  his  idle  and  profligate  course  of  life,  on,  &c.,  at,  &c., 
with  intent  to  cheat  and  defraud  one  A.  B.,  did  then  and  there 
unlawfully,  knowingly,  and  designedly  falsely  pretend  and  rep- 
resent to  the  said  A.  B.,  that  a  certain  draft  for  seven  thousand 
seven  hundred  dollars,  purporting  to  have  been  drawn  by  a  Mr. 
E.  of  Charleston  on  a  house  in  Boston  (and  which  the  said  E. 
H.  then  and  there  exhibited  to  the  said  A.  B.),  had  been  pro- 
tested for  non-payment.  That  he  the  said  E.  H.  had  his  pocket 
cut,  and  his  pocket-book,  containing  one  hundred  and  ninety- five 
dollars,  stolen  therefrom,  and  that  he  had  got  the  pocket-book 
subsequently  at  the  police  office"  in  the  City  of  New  York,  but 
no  money;  that  a  certain  other  draft  for  six  thousand  five  hun- 
dred dollars,  drawn  on  a  Mr.  T.  of  Philadelphia  (which  said  E. 
H.  then  and  there  exhibited  to  the  said  A.  B.),  had  been  received 
in  exchange  by  him  the  said  E.  H.  for  the  protested  draft  as 
aforesaid ;  and  that  the  said  E.  H.  expected  to  receive  the  money 

(c)  People  V.  Hale,  1  Wheel.  C.  C.  1 74.'  This  count  purports  to  have  been 
"  settled  "  by  Mr.  Maxwell,  the  then  district  attorney  of  New  York.  The  offence 
is  set  forth  with  sufficient  particularity,  with  the  exception  perhaps  of  the  last 
assignment  of  pretence,  "  that  defendant  expected  to  receive  the  money,"  &c., 
which  had  it  stood  alone  would  have  been  insufficient  to  have  sustained  a  ver- 
dict. It  does  not  appear  from  the  report  whether  any  exception  was  taken  to 
the  indictment,  the  chief  point  in  the  case,  so  iar  as  the  syllabus  is  concerned 
being  the  declaration  of  Recorder  Riker,  that  "  the  court  was  always  willing  to 
hear  what  could  be  alleged  in  favor  of  a  prisoner,  in  arrest  of  judgment." 

534 


FALSE   PRETENCES.  (556) 

on  the  said  last  mentioned  draft;  and  the  said  A.  B.  then  and 
there  believing  the  said  false  pretence  and  representation  so  made 
as  aforesaid  by  the  said  E.  PL,  and  being  deceived  thereby,  was 
induced  by  reason  of  the  false  pretence  and  representation,  so 
made  as  aforesaid,  to  deliver,  and  did  then  and  there  deliver  to 
the  said  E.  H.  thirty  pieces  of  silver  coin,  called  dollars,  of  the 
value  of  one  dollar  each ;  ten  promissory  notes  for  the  payment 
of  five  dollars  each,  and  of  the  value  of  five  dollars  each,  then 
and  there  being  due  and  unsatisfied ;  five  other  promissory  notes 
for  the  payment  of  three  dollars  each,  and  of  the  value  of  three 
dollars  each,  then  and  there  being  due  and  unsatisfied,  of  the 
proper  moneys,  goods,  chattels,  and  effects  of  the  said  A.  B. ;  the 
said  E.  H,  did  then  and  there  receive  and  obtain  the  said  prom- 
issory notes  and  money  of  the  said  A.  B.,  of  the  proper  moneys, 
goods,  chattels,  and  effects  of  the  said  A.  B.,  by  means  of  the 
false  pretence  and  representation  aforesaid,  and  with  intent  to 
cheat  and  defraud  the  said  A.  B.  of  the  said  promissory  notes 
and  money;  whereas,  in  truth  and  in  fact,  the  said  E,  H.  had  not 
any  draft  for  six  thousand  seven  hundred  dollars,  drawn  by  Mr. 
E.  of  Charleston  on  a  house  in  Boston,  and  no  such  draft  had 
been  protested ;  and  whereas,  in  truth  and  in  fact,  the  said  E.  H. 
had  not  been  robbed  of  any  money,  and  never  did  receive  any 
pocket-book  from  the  police  office  which  had  been  stolen  from 
him  ;  and  whereas,  in  truth  and  in  fact,  no  other  draft  for  six  thou- 
sand, five  hundred  dollars,  drawn  on  a  Mr.  T.  of  Philadelphia,  had 
ever  been  received  by  him,  the  said  E.  H.,  in  exchange  for  the 
said  first  mentioned  draft;  and  whereas,  in  truth  and  in  fact,  both 
drafts  exhibited  by  the  said  E.  H.  as  aforesaid  to  the  said  A.  B. 
were  forged  and  false,  and  tlie  said  E.  H.  never  expected  to  re- 
ceive any  money  by  virtue  thereof  from  the  persons  on  whom 
they  purported  to  be  drawn,  and  which  the  said  E.  H.  then  and 
there  well  knew  ;  and  whereas,  in  fact  and  in  truth,  the  pretence 
and  representation  so  niade  as  aforesaid  by  the  said  E.  H.  to  the 
said  A.  B.  was  in  all  respects  utterly  false  and  untrue,  to  wit, 
on,  &c. ;  and  whereas,  in  fact  and  in  truth,  the  said  E.  H.  well 
knew  the  Said  pretence  and  representation,  so  made  by  him  as 
aforesaid  to  the  said  A.  B.,  to  be  utterly  false  and  untrue  at  the 
time  of  making  the  same. 

That  the  said  E.  H.,  by  means  of  the  false  pretence  aforesaid, 

535 


(557)  OFFENCES  AGAINST  PROPERTY. 

on,  &c.,  at,  &c.,  unlawfully,  falsely,  knowingly,  and  designedly 
did  receive  from  the  said  A.  B.,  of  the  proper  moneys,  goods, 
chattels,  and  effects  of  the  said  A.  B.,  with  intention  to  defraud 
him  of  the  same,  against,  &c.,  and  against,  &c.  {Conclude  as  in 
book  1,  chapter  3.) 

(557)  Pretence  that  a  certain  watch  sold  hy  defendant  to  prosecutor 

was  gold.(d) 

That  A.  B.,  &c.,  contriving  and  intending  one  C.  D.,  by  false 
pretence  to  cheat  and  defraud  of  his  money  and  property  (and 
by  means  of  divers  false  pretences  to  be  hereinafter  more  partic- 
ularly described,  to  sell  and  dispose  of  as  a  genuine  gold  watch, 
to  the  said  C.  D.,  a  certain  w^atch  of  base  and  spurious  metal), 
unlawfully,  knowingly,  and  designedly  did  falsely  pretend  to  said 
C.  D.,  that  the  said  watch  which  he  the  said  A.  B.  then  and  there 
had  was  a  gold  watch  (and  that  he  the  said  A.  B.  did  thereupon 

(d)  This  indictment  is  based  generally  on  that  in  Com.  v.  Strain,  10  Met.  521, 
the  allegations  in  brackets  being  introduced.  "  The  case  at  bar,"  said  the  court, 
"  if  confined  in  its  proof"  on  the  trial  by  the  jury,  to  the  mere  allegations  in  the 
indictment,  would  be  certainly  quite  bald.  The  indictment  does  not  allege  any 
bargain,  nor  any  colloquium  as  to  a  bargain  for  a  watch;  nor  any  jjroposition  of 
Blake  to  buy,  or  of  the  defendant  to  sell  a  watch;  nor  any  delivery  of  the  watch, 
as  to  which  the  false  pretences  were  made,  into  the  possession  of  Blake,  as  a 
consideration  for  the  money  he  paid  the  defendant. 

"  It  seems  to  us,  that  where  money  or  other  property  is  obtained  by  a  sale  or 
exchange  of  property,  effected  by  means  of  false  pretences,  such  sale  or  exchange 
ought  to  be  set  forth  in  the  indictment ;  and  that  the  false  pretences  should  be 
alleged  to  have  been  made  with  a  view  to  effect  such  sale  or  exchange,  and  that 
by  reason  thereof  the  party  was  induced  to  buy  or  exchange,  as  the  case  may 
be. 

"  Although  the  language  of  the  Rev.  Sts.  ch.  126,  §  32,  is  very  broad,  yet  all 
will  agree  that,  in  its  practical  application,  the  false  declaration  must  be  made 
to  a  party  who  has  an  interest  in  the  matter,  and  is  affected  injuriously  by  the 
falsehood.  We  go  further,  however,  and  hold  that  in  a  case  like  the  present, 
where  the  alleged  false  pretences  were  injurious  only  by  inducing  another  per- 
son to  buy  the  article  as  to  which  such  false  representations  were  made,  such  sale 
or  offer  for  sale  must  be  set  out  as  a  part  of  the  facts  relied  upon,  and  as  a  ma- 
terial allegation  in  the  description  of  the  offence. 

"  Upon  the  whole  matter,  the  court  are  of  opinion  that  this  indictment  does 
not  plainly  and  distinctly  set  forth  the  offence  intended  to  be  charged ;  that  it 
does  not  contain  an  averment  of  those  material  facts  which  the  government 
would  be  bound  to  prove,  before  they  could  ask  for  a  conviction  ;  and  that,  for 
this  cause,  the  judgment  should  be  arrested." 

536 


FALSE   PRETENCES.  (558) 

effect  a  sale  of  the  said  watch  to  the  said  C.  D.  for  the  sum  of, 
&c.,  of  the  money  and  property  of  the  said  C.  D.,  he  the  said  C. 
D.  being  induced  to  purchase  said  watch  by  the  false  pretence 
above  mentioned),  by  means  whereof,  said  A.  B.  then  and  there 
unlawfully,  knowingly,  and  designedly  did  obtain  from  said 
C.  D.  the  said  {setting'  forth  the  money  obtained)^  of  the  money 
and  property  of  him  the  said  C.  D.  as  aforesaid,  with  intent  him 
the  said  C.  D.  then  and  there  to  cheat  and  defraud  of  the  same  ; 
whereas,  in  truth  and  in  fact,  said  watch  was  not  then  and  there 
a  gold  watch,  but  was  a  watch  of  base  and  spurious  metal ;  and 
said  A.  B,  then  and  there  well  knew  that  the  same  was  not  a 
gold  watch,  but  was  a  watch  of  base  and  spurious  metal  as 
aforesaid ;  to  the  great  damage  and  deception  of  him  the  said  C. 
D.,  against,  &c.,  and  contrary,  &c.  ( Conclude  as  in  book  1,  chap- 
ter 3.) 

(558)    Obtaining  raoney  by  means  of  a  false  warranty  of  the  iveight 

of  goods.(a) 

That  A.  B.,  late  of  B.,  in  the  County  of  S.,  trader,  on. the  first 
day  of  June,  in  the  year  of  our  Lord  at  B.  aforesaid,  in  the 

county  aforesaid,  unlawfully,  knowingly,  and  designedly  did 
falsely  pretend  to  C.  D.  that  a  certain  quantity  of  coals,  which 
the  said  A.  B.  then  and  there  delivered  to  the  said  C.  D.,  weighed 
one  ton  and  ten  hundred  weight,  and  that  the  said  coals  were 
then  and  there  worth  the  sum  of  fifteen  dollars  ;  by  means  of 
which  said  false  pretences  the  said  A.  B.  did  then  and  there  un- 
lawfully, knowingly,  and  designedly  obtain  from  the  said  C.  D. 
the  sum  of  fifteen  dollars,  of  the  money  of  the  said  C.  D.,  with 
intent  then  and  there  to  cheat  and  defraud  the  said  C.  D.  of  the 
same.  Whereas,  in  truth  and  in  fact,  the  said  coals  did  not  weigh 
one  ton  and  ten  hundred  weight ;  and  whereas,  in  truth  and  in 
fact,  the  said  coals  were  not  worth  the  sum  of  fifteen  dollars ; 
and  whereas,  in  truth  and  in  fact,  the  said  coals  weighed  only 

(a)  "  Altliough-  it  was  formerly  supposed  that  such  a  case  as  this  was  not  a 
false  pretence  within  the  statute,  it  is  quite  clear  that  it  is ;  and  there  never  was, 
in  fact,  any  express  decision  to  the  contrary ;  the  supposed  case  of  Rex  v.  Read 
(7  Carrington  &  Payne,  848),  on  which  such  a  notion  was  founded,  never  having 
been  considered  by  the  judges."  Lord  Denman,  C.  J.,  in  Regina  v.  Hamilton, 
9  Queen's  Bench  Rep.  271  ;  2  Cox,  C.  C.  11.     See  Wh.  C.  L.  §§  725,  2102,  &c. 

537 


(560)  OFFENCES  AGAINST  PROPERTY. 

one  ton  and  five  hundred  weight,  and  were  not  worth  more  than 
twelve  dollars,  as  the  said  A.  B.  then  and  there  well  knew  ;  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  jirovided. 

(559)    Obtaining  money  ly  a  false  warranty  of  goods, (li) 

That  A.  B.,  late  of  B.,  in  the  County  of  S.,  trader,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  at  B.  aforesaid,  in 

the  county  aforesaid,  unlawfully,  knowingly,  and  designedly  did 
falsely  pretend  to  C.  D.,  that  a  watch  then  and  there  produced 
by  the  said  A.  B.,  and  offered  for  sale  to  the  said  C.  D.,  was  a 
silver  watch^  and  was  then  and  there  of  the  value  of  fifty  dollars ; 
by  means  of  which  said  false  pretences  the  said  A.  B.  did  then 
and  there  unlawfully,  knowingly,  and  designedly  obtain  from 
the  said  C.  D.  the  sum  of  fifty  dollars,  of  the  money  of  the  said 
C.  D.,  with  intent  then  and  there  to  cheat  and  defraud  the  said 
C.  D.  of  the  same.  Whereas,  in  truth  and  in  fact,  the  said 
watch  was  not  a  silver  watch,  nor  was  the  same  then  and  there 
of  the  value  of  fifty  dollars,  as  the  said  A.  B.  then  and  there 
well  knew  ;  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  &c. 

(560)  Falsely  pretending  that  goods  were  of  a  particular  quality.(^c) 
The  jurors,  &c.,  upon  their  oath  present,  that  A.  B.,  late  of  B., 
in  the  County  of  S.,  trader,  at  the  time  of  the  making  of  the 
false  pretences  by  him  hereinafter  mentioned,  had  in  his  posses- 
sion and  offered  for  sale  divers  pounds  weight  of  cheese  of  little 
value  and  of  inferior  quality  ;  and  also  had  in  his  possession 
divers  pieces  of  cheese  called  "  tasters,"  of  good  flavor,  taste,  and 
quality.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present  that  the  said  A.  B.,  being  so  thereof  possessed, 
on  the  first  day  of  June,  in  the  year  of  our  Lord  at  B. 

aforesaid,  in  the  county  aforesaid,  unlawfully,  knowingly,  and 
designedly  did  falsely  pretend  to  one  C.  D.,  that  the  said  pieces 
of  cheese  called  "  tasters,"  which  the  said  A.  B.  then  and  there 
delivered  to  the  said  C.  D.,  were  part  of  the  cheese  which  the 
said  A.  B.  then  and  there  offered  for  sale,  and  that  the  said  last 

(h)  K  V.  Ball,  Carrington  &  Marsliman,  249. 

(c)  See  llegina  v.  Abbott,  1  Denison,  C.  C.  273;  2  Cox,  C.  C.  430;  2  Car- 
rington &  Kirwan,  630, 

538 


FALSE    PRETENCES.  (561) 

mentioned  cheese  was  of  good  and  excellent  quality,  flavor,  and 
taste,  and  that  every  pound  weight  of  the  said  cheese  so  offered 
for  sale  by  the  said  A.  B.  was  of  the  value  of  twelve  cents  ;  by 
means  of  which  said  false  pretences  the  said  A.  B.  did  then  and 
there  unlawfully,  knowingly,  and  designedly  obtain  from  the  said 
C.  D.  certain  money,  to  wit,  the  sum  of  twenty  dollars,  of  the 
moneys  of  the  said  C.  D.,  with  intent  then  and  there  to  cheat 
and  defraud  the  said  C.  D.  of  the  same.  Whereas,  in  truth  and 
in  fact,  the  said  pieces  of  cheese  called  "  tasters,"  which  the  said 
A.  B.  delivered  to  the  said  C.  D.,  were  not  part  of  the  cheese 
which  the  said  A.  B.  offered  for  sale ;  and  whereas,  in  truth  and 
in  fact,  the  said  cheese  offered  for  sale  was  not  of  good  and 
excellent  quality,  flavor,  and  taste ;  and  whereas,  in  truth  and  in 
fact,  every  pound  weight  of  the  said  cheese  offered  for  sale  by 
the  said  A.  B.  was  not  of  the  value  of  twelve  cents,  as  the 
said  A.  B.  then  and  there  well  knew ;  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

l^For  an  indictment  for  falsely  averring  ownership  of  personal 
property,  and  thereby  obtaining'  money  on  mortgage  for  same, 
see  Com.  v.  Lincoln,  11  Allen,  233.] 

(561)  Pretence  that  a  certain  horse  to  he  sold,  S^c,  tvas  sound,  ayid 
was  the  horse  called  "  Oharley'^e) 

That  the  said  M.,  on,  &c.,  contriving  and  intending  knowingly 
and  designedly  by  false  pretences  to  cheat  and  defraud  one  J.  L. 
of  his  moneys,  goods,  wares,  and  merchandise,  and  other  things, 

(e)  Tliis  is  the  substance  of  an  indictment  sustained  in  Maine,  in  State  v. 
Mills,  17  Maine,  24.  "  The  horse,  called  the  Charley,"  said  the  court,  "  might 
have  had  the  reputation  of  possessing  qualities,  which  rendered  it  desirable  for 
the  party  injured  to  become  the  owner  of  him.  The  defendant  produced  a  horse, 
which  he  affirmed,  was  the  Charley.  It  was  a  folse  pretence,  fraudulently  made, 
for  the  purpose  of  procuring  a  colt  and  money  from  another.  The  attempt  suc- 
ceeded. These  focts  the  jury  have  found.  It  is  a  case  literally  within  the  stat- 
ute ;  and  we  do  not  perceive  why  it  is  not  within  the  mischief  it  was  intended 
to  punish.  To  sustain  it  would  not  be  going  further  than  precedents  warrant. 
If  the  construction  should  be  narrowed  to  cases,  which  might  be  guarded  against 
by  common  prudence,  the  weak  and  imbecile,  the  usual  victims  of  these  pre- 
tences, would  be  left  unprotected.  It  may  not  be  easy  to  lay  down  any  general 
rule,  with  proper  qualifications  and  limitations  ;  but  in  the  case  before  us,  we  are 
of  opinion  that  the  offence  charged  has  been  committed."  See  Wh.  C.  L. 
§  2092. 

539 


(562)  OFFENCES  AGAINST  PROPERTY. 

did,  knowingly  and  designedly,  pretend  to  said  L.,  that  a  certain 
horse  which  he  the  said  M.  then  wished  and  offered  to  exchange 
with  said  L.  for  a  certain  colt  and  five  dollars  in  money,  was  then 
and  there  a  sound  horse,  and  was  the  horse  called  the  C,  the  said 
horse  called  the  C.  being  well  known  to  said  L.  by  true  and  cor- 
rect representations  which  he  had  received,  although  he  had  not 
seen  said  horse  called  the  C,  &c.,  by  which  false  pretences  said 
M.  then  and  there  induced  the  said  L.  to  exchange  with  and 
deliver  to  said  M.  his  said  colt  and  five  dollars  in  money,  for  said 
horse  falsely  represented  as  aforesaid  to  be  the  C,  &c.,  and 
whereas,  in  truth  and  in  fact,  the  said  horse  which  said  M.  offered 
to  and  exchanged  with  said  L.,  and  which  he  represented  as  a 
sound  horse,  and  as  the  horse  called  the  C,  was  not  a  sound 
horse,  and  was  not  the  horse  called  the  C,  but  was  a  different 
horse,  and  unsound,  and  wholly  worthless,  &c. 

(562)  Pretence  tliat  a  horse  and  pJiceton  were  the  property  of  a  lady 
then  shortly  before  deceased^  and  that  the  horse  was  kind,  4'C.(f^ 

That  T.  K.  the  elder,  &c.,  and  S.  K.,  &c.,  intending,  &c.,  on, 
&c.,  at,  &c.,  unlawfully,  knowingly,  and  designedly  did  falsely 
pretend  to  the  said  G.  W.  F.,  that  a  certain  carriage,  to  wit,  a 
carriage  called  a  phgeton,  and  a  certain  mare  and  a  certain  geld- 
ing, which  they  the  said  defendants  then  and  there  offered  for 
sale  to  the  said  G.  W.  F.,  had  then  been  the  property  of  a  lady 
then  deceased,  and  were  then  the  property  of  her  sister,  and 
were  not  then  the  property  of  any  horse-dealer,  and  were  then 
the  property  of  a  private  person,  and  that  the  said  mare  and  the 
said  gelding  were  then  respectively  quiet  to  ride  and  drive,  and 
quiet  and  tractable  in  every  respect.  By  means  of  which  said 
false  pretences  the  said  defendants  did  then  and  there  unlawfully, 
knowingly,  and  designedly  obtain  from  the  said  G.  W.  F.  a  cer- 
tain valuable  security,  to  wit,  an  order  for  the  payment  of  one 
hundred  and  sixty-eight  pounds  (being  then  and  there  the  prop- 
erty of  the  said  G.  W.  F.),  with  intent  then  and  there  to  cheat 
and  defraud  him,  the  said  G.  W.  F.,  of  the  same.  Whereas,  in 
truth  and  in  fact,  the  said  carriage,  the  said  mare,  and  the  said 
gelding  had  not  then  been  the  property  of  a  lady  then  deceased, 

(/)  11.  V.  Kenrick,  5  A.  &  E.  N.  S.  49,  where  this  count  appears  to  be  sus- 
tained. 

540 


FALSE   PRETENCES.  (564) 

and  were  not  then  the  property  of  her  sister ;  and  whereas,  in 
truth  and  in  fact,  the  said  carriage,  the  said  mare,  and  the  said 
gelding  were  the  property  of  a  horse-dealer,  and  whereas,  in 
truth  and  in  fact,  the  said  carriage,  the  said  mare,  and  the  said 
gelding  were  not  then  the  property  of  a  private  person  ;  and 
whereas,  in  truth  and  in  fact,  the  said  mare  and  the  said  gelding 
were  not  then  quiet  to  ride  and  drive,  and  were  not  then  quiet 
and  tractable  in  every  respect ;  and  whereas  the  said  defendants 
then  and  there  well  knew  that  the  said  carriage,  the  said  mare, 
and  the  said  gelding  had  not  then  been  the  property  of  a  lady 
then  deceased,  and  were  not  then  the  property  of  her  sister;  and 
also  then  and  there  well  knew  that  the  same  were  then  the  prop- 
erty of  a  horse-dealer,  and  that  the  same  were  not  then  the 
property  of  a  private  person,  and  that  the  said  mare  and  the  said 
gelding  were  not  then  quiet  to  ride  and  drive,  and  were  not  then 
quiet  and  tractable  in  every  respect,  to  the  great  damage  and 
deception  of  the  said  G.  W.  F.,  to  the  evil  exam.ple,  &c.,  against, 
&c.,  and  against,  &c.     ( Conclude  as  in  book  1,  cliapter  3.) 

(563)  Second  count.     Like  the  firsts  except  that  the  offering  for  sale 

ivas  alleged  to  have  been  by  T.  K.  the  elder,  only. 

(564)  Other  pretence  as  to  the  value  and  history  of  a  horse,  which 

the  'prisoners  sold  to  the  prosecutor. (jx) 

The  jurors,  &c.,  upon  their  oath  present,  that  heretofore,  to 
wit,  at  the  time  of  the  commission  of  the  offence  hereinafter  in 
this  count  mentioned,  one  R.  J.  T.  was  desirous  of  purchasing 
and  providing  himself  with  a  horse  which  should  be  sound  and 
quiet  in  harness,  and  that  J.  P.  B.,  late  of  the  parish  of  St.  James, 
Westminster,  in  the  County  of  Middlesex,  and  within  the  juris- 
diction of  the  said  court,  laborer,  and  J.  P.,  late  of  the  same 
place,  laborer,  well  knowing  the  premises,  and  that  the  said  R.J. 
T.  would  be  ready  to  purchase  of  and  from  any  respectable  and 
responsible  person  such  horse  as  aforesaid  ;  and  that  the  said  J. 
P.  B.  and  J.  P.  having  in  their  possession  a  certain  horse,  much 
under  the  value  of  three  hundred  pounds,  to  wit,  of  the  value  of 
one  hundred  pounds,  and  no  more,  and  then  being  unsound,  and 
the  said  J.  P.  B.  and  J.  P.  wickedly  and  fraudulently  intending 
(a)  3  Cox,  C.  C.  Appendix,  p.  xlix. 

541 


(564)  '    '  OFFENCES   AGAINST   PROPERTY. 

to  persuade  the  said  R.  J.  T.  to  deposit  with  them,  the  said  J.  P. 
B.  and  J.  P.,  a  large  sum  of  money  upon  the  delivery  of  the  said 
horse  to  the  said  R.  J,  T.  for  trial  and  approval  thereof,  and  un- 
der color  of  their  readiness  and  willingness  to  return  the  said 
money,  subject  to  the  deduction  of  fifty  pounds,  in  case  the  said 
horse  should  not  be  approved  of  by  the  said  R.  J.  T.,  to  cheat  and 
defraud  the  said  R.  J.  T.  of  the  same  money  so  to  be  deposited 
as  aforesaid,  on  the  seventh  day  of  September,  in  the  year  of  our 
Lord  at  the  parish  aforesaid,  in  the  county  aforesaid,  and 

within  the  jurisdiction  of  the  said  court,  did  produce  the  said 
horse  to  the  said  R.  J.  T.,  and  did  then  and  there  unlawfully,  know- 
ingly, and  designedly  falsely  pretend  to  the  said  R.  J.  T.,  that  the 
said  J.  P.  B.  then  was  in  the  wool  business  in  the  City  of  London  ; 
that  the  said  horse  then  belonged  to  a  brother  of  the  said  J.  P.  B. 
then  abroad  ;  that  the  said  J.  P.  B.  then  had  to  sell  the  said  horse 
for  his  said  brother;  that  the  said  horse  was  then  perfectly  sound 
and  quiet  in  harness,  and  had  then  been  used  to  run  with  another 
horse  in  harness,  which  had  been  sold  to  a  colonel.  By  means 
of  which  said  false  pretences  the  said  J.  P.  B.  and  J.  P.  did  then 
and  there  unlawfully,  knowingly,  and  designedly  fraudulently 
obtain  of  and  from  the  said  R.  J.  T.  one  piece  of  paper  of  the 
value  of  one  penny,  of  the  goods  and  chattels  of  the  said  R.  J.  T., 
and  one  order  for  the  payment  of  money,  to  wit,  for  the  payment 
of  the  sum  of  three  hundred  pounds,  and  of  the  value  of  three 
hundred  pounds,  then  being  the  property  of  the  said  R.  J.  T.,  with 
intent  then  and  there  to  cheat  and  defraud  him  of  the  said  goods, 
chattels,  and  order  respectively,  the  said  sum  of  money  payable 
and  secured  by  and  upon  the  said  order  being  then  due  and  un- 
satisfied to  the  said  R.  J.  T.,  the  proprietor  of  the  said  order; 
wrhereas,  in  truth  and  in  fact,  the  said  J.  P.  B.  was  not  then  in 
the  wool  trade  in  the  City  of  London  ;  and  whereas,  in  truth  and 
in  fact,  the  said  horse  did  not  belong  to  a  brother  of  the  said  J.  P. 
B.,  who  was  abroad  ;  and  whereas,  in  truth  and  in  fact,  the  said 
J.  P.  B.  had  not  then  to  sell  the  said  horse  for  his  said  supposed 
brother ;  and  whereas,  in  truth  and  in  fact,  the  said  horse  was 
not  then  sound  or  quiet  in  harness,  and  had  not  then  been  used 
to  run  with  another  horse  which  had  been  sold  to  a  colonel ;  all 
of  which  said  false  pretences  the  said  J.  P.  B.  and  J.  P.,  at  the 
time  of  making  thereof  as  aforesaid,  well  knew  to  be  false;  to 
642 


FALSE   PRETENCES.  (565) 

the  great  damage  and  deception  of  the  said  R.  J.  T.,  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace,  &c. 

(565)  Pretence  that  one  J.  P. ^  of  the  City  of  Washington^  wanted  to 
buy  some  brandy,  <fc. ;  that  said  J.  P.  kept  a  large  hotel  at 
Washington,  <f  c,  that  defendant  was  sent  by  said  J.  P.  to 
purchase  brandy  as  aforesaid,  and  that  defendant  would  pay 
cash  therefor,  if  prosecutor  would  sell  him  the  same.(^g^  First 
count. 

That  A.  S.,  late,  &c.,  being  an  evil  disposed  person,  with  intent 
to  and  contriving  and  intending  unlawfully,  fraudulently,  and  de- 
ceitfully to  cheat  and  defraud  J.  L.  and  P.  J.,  copartners  in 
trade,  under  the  firm  of  J.  L.  and  Company,  of  the  said  city  and 
county,  of  their  goods,  wares,  and  merchandises,  on,  &c.,  at  &c., 
unlawfully,  knowingly,  and  designedly  did  falsely  pretend  to  the 
said  J.  L.  and  P.  J.,  as  aforesaid,  that  one  J.  P.,  of  the  City  of 
Washington,  wanted  to  buy  some  brandy,  to  wit,  two  half  pipes 
of  brandy,  that  the  said  J.  kept  a  large  hotel  at  Washington  City 
aforesaid,  that  he  the  said  A.  S.  was  sent  by  the  said  J.  P.  to 
purchase  brandy  as  aforesaid  for  him  (said  J.  P.  meaning),  and  he 
the  said  A.  S.  would  pay  therefor  in  cash,  if  they  the  said  J.  L.  and 
P.  J.  would  sell  him  the  same  ;  by  which  said  false  pretences  the 
said  A.  S.  did  then  and  there,  to  wit,  on,&c.,  at,  &c.,  unlawfully, 
knowingly,  and  designedly  obtain  from  the  said  J.  L.  and  P.  J., 
as  aforesaid,  two  half  pi|)es  of  brandy,  of  the  value  of  three  hun- 
dred dollars,  of  the  goods,  wares,  and  merchandises  of  the  said  J. 
L.  and  P,  J.,  with  intent  then  and  there  to  cheat  and  defraud 
them  the  said  J.  L.  and  P.  J.  of  the  same  ;  whereas,  in  truth  and 
in  fact,  the  said  A.  S.  was  not  then  sent  by  J.  P.  to  purchase 
such  brandy  as  aforesaid  for  him  or  any  other  person,  and  the 
said  J.  P.  did  not  want  to  buy  any  brandy  as  aforesaid,  and  did 
not  keep  a  hotel  at  Washington  City  as  aforesaid,  and  the  said 

(7)  Com.  V.  Spring,  Oy.  &  Term.  City  and  County  of  Philadelphia.  See  3 
Pa.  L.  J.  89.  The  defendant  was  convicted  and  sentence  passed.  The  aver- 
ment that  he  intended  to  pay,  in  the  first  two  counts,  would  not  have  been 
alone  sufficient,  but  as  it  was  connected  with  other  operative  pretences,  and  as 
it  could  be  disengaged  from  the  context  as  surplusage,  it  did  not  vitiate  the 
counts  in  which  it  is  introduced.  The  omission  of  an  averment,  however,  that 
the  defendant  knew  the  pretences  to  be  at  the  time  false,  is  more  questionable. 

543 


(566)  OFFENCES  AGAINST  PROPERTY. 

A.  S.  did  not,  at  the  time  of  procuring  the  said  brandy  so  as 
aforesaid,  intend  to  pay  for  the  same  {insert  scienter),  to  the 
great  damage  and  deception  of  the  said  J.  L.  and  P.  J.,  to  the 
evil  example  of  all  others  in  like  cases  offending,  against,  &c., 
and  against,  &c.     (Conclude  as  in  book  1,  chcqjter  3.) 

(566)  Second  count.  That  defendant  was  requested  hy  one  J.  P., 
who  kept  a  large  hotel  in  Washington  City,  to  purchase  some 
brandy  for  said  J.  P.,  and  that  if  prosecutor  would  sell  de- 
fendant two  half  pipes  of  brandy,  defendant  ivould pay  pros- 
ecutor cash  for  the  same  shortly  after  delivery. 

That  the  said  A.  S.,  being  such  person  as  aforesaid,  with  in- 
tent to  and  contriving  and  intending  unlawfully,  fraudulently, 
and  deceitfully  to  cheat  and  defraud  the  said  J.  L.  and  P.  J.,  co- 
partners as  aforesaid,  of  their  goods,  wares,  and  merchandises, 
on,  &c.,  at,  &c.,  unlawfully,  knowingly,  and  designedly  did  falsely 
pretend  to  the  said  J.  L.  and  P.  J.,  as  aforesaid,  that  he,  the 
said  A.  S.,  was  requested  by  one  J.  P.,  who  kept  a  large  hotel  in 
Washington  City,  to  purchase  some  brandy  for  him,  said  P. ;  and 
that  if  they,  the  said  J.  L.  and  P.  J.  would  sell  him,  said  A.  S., 
two  half  pipes  of  brandy,  he  the  said  A.  S.  would  pay  for  the 
same  in  cash  shortly  after  delivery  thereof;  by  which  said  false 
pretences  the  said  A.  S.  did  then  and  there,  to  wit,  on  the  day 
and  year  last  aforementioned,  within  the  jurisdiction  of  the  said 
court,  unlawfully,  knowingly,  and  designedly  obtain  from  the  said 
J.  L.  and  P.  J.,  as  aforesaid,  two  half  pipes  of  brandy,  of  the 
value  of  three  hundred  dollars,  of  the  goods,  wares,  and  merchan- 
dises of  the  said  J.  L.  and  P.  J.,  with  intent  then  and  there  to 
cheat  and  defraud  them,  the  said  J.  L.  and  P.  J.,  of  the  same  ; 
whereas,  in  truth  and  in  fact,  the  said  A.  S.  was  not  requested  by 
J.  P.  to  purchase  brandy  for  him,  said  P.,  and  said  P.  did  not 
keep  a  hotel  in  Washington  City,  and  the  said  A.  S.  did  not,  at 
the  time  of  procuring  the  said  brandy  as  aforesaid,  intend  to 
pay  for  the  same  as  aforesaid  [insert  scienter),  to  the  great 
damage  and  deception  of  the  said  J.  L.  and  P.  J.,  to  the  evil  ex- 
ample of  all  others  in  like  case  offending,  against,  &c.,  and 
against,  &c.  ( Conclude  as  in  book  1,  chapter  3.) 
544 


FALSE  PRETENCES.  (oG8) 

(567)  Third  count.  That  defendant  had  been  requested  by  one  J, 
P.  to  purchase  for  him  some  brandy^  that  he  (the  said  J.  P.) 
kept  a  large  hotel  in  Baltimore^  ifc. 

That  the  said  A.  S.,  being  such  person  as  aforesaid,  with  in- 
tent to  and  contriving  and  intending  unlawfully,  fraudulently,  and 
deceitfully  to  cheat  and  defraud  the  said  J.  L.  and  P.  J.,  copart- 
ners as  aforesaid,  of  their  goods,  wares,  and  merchandises,  on  the 
thirteenth  day  of  July,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  forty-two,  with  force  and  arms,  at  the  city  and 
county  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
unlawfully,  knowingly,  and  designedly  did  falsely  pretend  to  the 
said  J.  L.  and  P.  J.,  as  aforesaid,  that  he  (the  said  A.  S.)  was 
requested  by  one  J.  P.  to  purchase  for  him  some  brandy,  and  that 
he  (the  said  P.)  kept  a  large  hotel  at  Washington  ;  by  which 
said  false  pretences  the  said  A.  S.  did  then  and  there,  to  wit,  on 
the  day  and  year  last  aforementioned,  at  the  city  and  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  unlaw- 
fully, knowingly,  and  designedly  obtain  from  the  said  J.  L.  and 
P.  J.,  as  aforesaid,  two  half  pipes  of  brandy,  of  the  value  of  three 
hundred  dollars,  of  the  goods,  wares,  and  merchandises  of  the 
said  J.  L.  and  P.  J.,  with  intent  then  and  there  to  cheat  and  de- 
fraud them,  the  said  J.  L.  and  P.  J.,  of  the' same;  whereas,  in 
truth  and  in  fact,  the  said  A.  S.  was  not  requested  by  the  said  J. 
P.  to  purchase  any  brandy  for  him,  and  the  said  P.  did  not  keep 
a  hotel  at  Washington  {insert  scienter),  to  the  great  damage  and 
deception  of  the  said  J.  L.  and  P.  J.,  to  the  evil  example  of  all 
others  in  like  cases  offending,  against,  &c.,  and  against,  &c. 
( Conclude  as  in  book  1,  chapter  3.) 

(568)  Pretence  that  one  of  the  defendants  having  advanced  money  to 
the  other  on  a  deposit  of  certain  title  deeds,  had  himself  de- 
posited the  deeds  with  a  friend,  and  that  he  required  a  sum 
of  money  to  redeem  them  ;  zvith  counts  for  conspiracy. (a) 

That  heretofore,  and  before  and  at  the  time  of  the  committing 
of  the  offence  hereinafter  mentioned,  one  C.  R.  acting  in  fraudu- 
lent collusion  with  one  J.  A.,  had  retained  and  employed  one  W. 
J.,  then  and  still  practising  as  an  attorney  at  law  and  solicitor  in 

(a)  4  Cox,  C.  C.  Appendix,  p.  xli. 
VOL.  I.  —  35  545 


(568)  OFFENCES  AGAINST  PROPERTY. 

chancery,  as  the  attorney  and  solicitor  of  the  said  C.  E..  to  make 
application  to  the  said  J.  A.  for  a  certain  debt  of  five  hundred 
pounds,  then  alleged  by  the  said  C.  R.  to  be  due  to  him  from  the 
said  J.  A.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  the  said  J.  A.  afterwards,  and  before  the 
committing  of  the  offence  hereinafter  mentioned,  acting  in  fraudu- 
lent collusion  with  the  said  C.  E,.,  offered  to  and  arranged  with 
the  said  W.  J.,  as  such  attorney  and  solicitor  of  the  said  C.  E,,  as 
aforesaid,  to  discharge  such  alleged  debt  of  five  hundred  pounds, 
and  also  the  further  sum  of  fifty  pounds,  for  a  certain  other 
alleged  debt  upon  the  deeds  hereinafter  mentioned  being  de- 
livered to  the  said  J.  A.,  which  said  deeds  the  said  C.  R.,  acting 
in  fraudulent  collusion  with  the  said  J.  A.,  afterwards,  and  before 
the  committing  of  the  offence  hereinafter  mentioned,  proposed  to 
place  in  the  hands  of  the  said  W.  J.,  as  the  attorney  and  solicitor 
of  the  said  C.  R.,  for  the  purpose  of  being  so  delivered  to  the 
said  J.  A.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  the  said  C.  R.,  late  of  the  parish  of  Saint 
George,  Bloomsbury,  in  the  County  of  Middlesex,  and  within  the 
jurisdiction  of  the  said  Central  Criminal  Court,  laborer,  and  the 
said  J.  A.,  late  of  the  same  place,  laborer,  devising  and  contriving, 
and  wickedly  combining  and  intending  to  deceive  the  said  W. 
J.  in  the  premises,  and  to  obtain  from  the  said  W.  J.  the  said 
sum  of  five  hundred  pounds,  and  to  cheat  and  defraud  him  of  the 
same,  afterwards,  to  wit,  on  the  first  day  of  July,  in  the  year  of 
our  Lord  at  the  parish  of  Saint  George,  Bloomsbury,  afore- 

said, in  the  county  aforesaid,  and  within  the  jurisdiction  of  the 
said  Central  Criminal  Court,  unlawfully,  knowingly,  and  design- 
edly dici  falsely  pretend  to  the  said  W.  J.,  that  the  said  J.  A.  was 
then  really  and  truly  indebted  to  the  said  C.  R.  in  the  said  sura 
of  five  hundred  pounds,  for  money  lent  by  the  said  C.  R.  to  the 
said  J.  A. ;  that  the  said  J.  A.  had  then  deposited  with  the  said 
C.  R.  certain  deeds  relating  to  the  property  of  the  wife  of  the 
said  J.  A.,  for  the  purpose  of  securing  payment  of  the  said  sum 
of  five  hundred  pounds  to  the  said  C.  R.,  but  that  the  said  C.  R. 
afterwards  had  deposited  such  deeds  with  a  friend  of  the  said  C. 
R.,  who  had  then  advanced  money  upon  the  security  of  the  same 
deeds  to  the  said  C.  R.,  and  then  held  the  said  deeds  as  such 
security  as  last  aforesaid  ;  that  the  said  C.  R.  then  wanted  the 
646 


FALSE  PRETENCES.  (568) 

said  sum  of  five  hundred  pounds  from  the  said  W.  J.,  for  the  pur- 
pose of  recovering  possession  of  the  said  deeds,  and  to  enable 
the  said  C.  R.  to  place  the  same  in  the  hands  of  the  said  W.  J., 
in  order  that  the  same  might  be  redelivered  to  the  said  J.  A.  upon 
the  payment  by  him  to  the  said  W.  J.  of  the  said  sum  of  five 
hundred  pounds,  pursuant  to  such  offer  and  arrangement  in  that 
behalf  as  aforesaid ;  by  means  of  which  said  several  false  pre- 
tences, they  the  said  C.  R.  and  J.  A.  then  and  there,  to  wit,  on 
the  day  and  year  aforesaid,  and  within  the  jurisdiction  of  the 
said  Central  Criminal  Court,  unlawfully,  knowingly,  and  design- 
edly did  fraudulently  obtain  of  and  from  the  said  W.  J.  one  or- 
der for  the  payment  of  money,  to  wit,  for  the  payment,  and  of  the 
value  of  five  hundred  pounds,  then  and  there  being  the  property  of 
the  said  W.  J.,  and  one  piece  of  paper  of  the  value  of  one  penny, 
of  the  goods  and  chattels  of  the  said  W.  J.,  with  intent  then  and 
there  to  cheat  and  defraud  him  of  the  same  property,  goods,  and 
chattels ;  and  whereas,  in  truth  and  in  fact,  the  said  J.  A.  was 
not  then  really  and  truly  indebted  to  the  said  C.  R.  in  the  said 
sum  of  five  hundred  pounds,  as  the  said  C.  R.  and  J.  A.  so  falsely 
pretended  as  aforesaid,  either  for  money  lent  or  any  cause  what- 
soever. And  whereas,  in  truth  and  in  fact,  the  said  J.  A.  had  not 
then  deposited  with  the  said  C.  R.  certain  deeds  relating  to  the 
property  of  the  wife  of  the  said  J.  A.,  for  the  purpose  of  securing 
payment  of  the  said  sum  of  five  hundred  pounds  to  the  said  C. 
R.,  as  the  said  C.  R.  and  J.  A.  so  falsely  pretended  as  aforesaid, 
or  of  any  sum  of  money  whatever.  And  whereas,  in  truth  and 
in  fact,  the  said  C.  R.  had  not  then  deposited  any  such  deeds  as 
the  said  C.  R.  and  J.  A.  so  falsely  pretended  as  aforesaid,  with 
any  friend  of  the  said  C.  R.,  who  had  then  advanced  money  upon 
the  security  of  such  deeds  to  the  said  C.  R.,  or  with  any  person 
whatsoever  ;  nor  did  any  such  friend  of  the  said  C.  R.,  as  the  said 
C.  R.  and  J.  A.  so  falsely  pretended  as  aforesaid,  then  hold  such 
deed  as  a  security  for  any  money  advanced  to  the  said  C.  R,,  as 
the  said  C.  R.  and  J.  A.  so  falsely  pretended  as  aforesaid.  And 
whereas,  in  truth  and  in  fact,  the  said  C.  R.  did  not  then  want 
the  said  sum  of  five  hundred  pounds  from  the  said  W.  J.  for  the 
purpose  of  recovering  possession  of  any  such  deeds  as  the  said 
C.  R.  and  J.  A.  so  falsely  pretended  as  aforesaid,  or  to  enable 
the  said  C.  R.  to  place  such  deeds  in  the  hands  of  the  said  W.  J. 

547 


(668)  OFFENCES  AGAINST  PROPERTY. 

in  order  that  the  same  might  be  redelivered  to  the  said  J.  A.  upon 
the  payment  by  him  to  the  said  W.  J.  of  the  said  sum  of  five 
hundred  pounds,  pursuant  to  such  offer  and  arrangement  in  that 
behalf  as  aforesaid.  And  whereas,  in  truth  and  in  fact,  the  said 
alleged  debt,  and  the  said  supposed  deeds,  had  no  existence  what- 
soever, but  were  pretended  to  have  existence  by  the  said  C.  R. 
and  J.  A.  as  aforesaid,  for  the  purpose  of  deceiving,  cheating, 
and  defrauding  the  said  W.  J.  in  manner  aforesaid,  and  for  no 
other  purpose  whatever;  to  the  great  injury  and  deception  of  the 
said  W.  J.,  to  the  evil  and  pernicious  example  of  all  other  per- 
sons in  the  like  case  offending,  against  the  peace,  &c.,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  provided. 

Second  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  C.  R.  and  J.  A.,  devising  and  contriving, 
and  wickedly  combining  and  intending  to  deceive  the  said  W.  J., 
and  to  obtain  from  the  said  W.  J.  the  said  sum  of  five  hundred 
pounds,  and  to  cheat  and  defraud  him  of  the  same,  afterwards,  to 
wit,  on  the  first  day  of  July,  in  the  year  of  our  Lord  at  the 

parish  of  St.  George,  Bloomsbury,  aforesaid,  in  the  County  of 
Middlesex  aforesaid,  and  within  the  jurisdiction  of  the  said  Cen- 
tral Criminal  Court,  unlawfully,  knowingly,  and  designedly  did 
falsely  pretend  to  the  said  W.  J.,  that  the  said  J.  A.  had  before 
then  deposited  with  the  said  C.  R.  certain  deeds  relating  to  the 
property  of  the  wife  of  the  said  J.  A.,  as  a  security  for  the  pay- 
ment to  the  said  C.  R.  of  the  sum  of  five  hundred  pounds ;  that 
the  said  C.  R.  had  afterwards  deposited  such  deeds  with  a  friend 
of  the  said  C.  R.,  who  had  then  advanced  money  to  the  said  C. 
R.  upon  the  security  of  the  said  deeds,  and  then  held  such  deeds 
as  such  security  as  last  aforesaid.  And  that  the  said  C.  R.  then 
required  the  sum  of  five  hundred  pounds  for  the  purpose  of  recov- 
ering possession  of  the  said  deeds,  by  means  of  which  said  sev- 
eral false  pretences  in  this  count  mentioned,  the  said  C.  R.  and 
J.  A.  did  then  and  there  unlawfully,  knowingly,  and  designedly 
fraudulently  obtain  of  and  from  the  said  W.  J.  one  order  for  the 
payment  of  money,  to  wit,  for  the  payment  of  the  sum  of  five 
hundred  pounds,  then  and  there  being  of  the  value  of  five  hun- 
dred pounds,  and  the  property  of  the  said  W.  J.,  and  one  piece 
648 


FALSE  PRETENCES.  (568) 

of^ paper  of  the  value  of  one  penny,  of  the  goods  and  chattels  of 
the  said  W.  J.,  with  intent  then  and  there  to  cheat  and  defraud 
the  said  W.  J.  of  the  said  goods  and  chattels  and  property ; 
whereas,  in  truth  and  in  fact,  the  said  J.  A.  had  not  deposited 
with  the  said  C.  R.  such  deeds  relating  to  the  property  of  the 
wife  of  the  said  J.  A.,  as  the  said  C.  R.  and  J.  A.  so  falsely  pre- 
tended, as  in  this  count  mentioned.  And  whereas,  in  truth  and 
in  fact,  the  said  C.  R.  had  not  deposited  such  deeds  with  any 
friend  of  the  said  C.  R.,  as  the  said  C.  R.  and  J.  A.  so  falsely 
pretended,  as  in  this  count  mentioned.  And  whereas,  in  truth 
and  in  fact,  no  friend  of  the  said  C.  R.,  nor  any  person  whatso- 
ever, had  then  advanced  money  to  the  said  C.  R.  upon  the  secur- 
ity of  the  said  deeds.  And  whereas,  in  truth  and  in  fact,  no 
friend  of  the  said  C.  R.,  nor  ^ny  person  whatsoever,  then  held 
such  deeds  as  any  security  whatsoever.  And  whereas,  in  truth 
and  in  fact,  the  said  C.  R.  did  not  then  require  the  said  sum  of 
five  hundred  pounds,  or  any  sum  of  money  whatsoever,  for  the 
purpose  of  recovering  possession  of  such  deeds,  as  the  said  C.  R. 
and  J.  A.  so  falsely  pretended,  as  in  this  count  mentioned.  And 
whereas,  in  truth  and  in  fact,  such  deeds  had  no  existence  what- 
soever, but  were  so  pretended  by  the  said  C.  R.  and  J.  A.  to  have 
existence  as  aforesaid,  for  the  purpose  of  cheating  and  defraud- 
ing the  said  W.  J.  as  aforesaid,  and  for  no  other  purpose  what- 
soever; to  the  great  injury  and  deception  of  the  said  W.  J.,  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace,  &c. 

Third  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  J.  A.  and  C.  R.  afterwards,  to  wit,  on  the 
day  and  year  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  Central  Crimi- 
nal Court,  unlawfully  and  wickedly  did  conspire,  combine,  con- 
federate, and  agree  together,  and  with  divers  other  evil  disposed 
persons,  whose  names  to  the  jurors  aforesaid  are  as  yet  unknown, 
falsely  and  fraudulently  to  pretend  and  cause  to  appear  to  the 
said  W.  J.,  that  the  said  J.  A.  was  then  indebted  to  the  said  C. 
R.  in  the  sum  of  five  hundred  pounds ;  that  the  said  J.  A.  had 
deposited  with  the  said  C.  R.  certain  deeds  relating  to  the  prop- 

649 


(568)  OFFENCES  AGAINST  PROPERTY. 

erty  of  the  wife  of  the  said  J.  A.,  as  a  security  for  the  payment 
to  the  said  C.  R.  of  the  said  sum  of  five  hundred  pounds ;  that 
the  said  C.  R.  had  afterwards  deposited  such  deeds  with  a  friend 
of  the  said  C.  R.,  who  had  advanced  money  upon  the  security  of 
the  same,  and  by  whom  such  deeds  were  then  held ;  that  the  said 
J.  A.  was  desirous  of  discharging  the  said  debt  due  from  him  to 
the  said  C.  R.,  upon  the  redelivery  to  the  said  J.  A.  of  the  said 
deeds,  but  that  the  said  C.  R.  was  then  unable  to  procure  the  re- 
delivery to  him  of  the  said  deeds,  for  want  of  money  to  pay  such 
money  so  advanced  to  him  upon  the  security  of  the  same,  and 
to  induce  and  persuade  the  said  W.  J.,  by  means  of  the  several 
false  representations  aforesaid,  and  upon  the  faith  and  confidence 
that  such  deeds  really  existed,  and  upon  the  promise  and  assur- 
ance of  the  said  C.  R.  that  he  would  deposit  the  said  deeds  with 
the  said  W.  J.,  for  the  purpose  of  delivering  the  same  to  the  said 
J.  A.,  and  receiving  from  the  said  J.  A.  such  debt  of  five  hundred 
pounds,  so  to  be  pretended  to  be  due  from  the  said  J.  A.  to  the 
said  C.  R.,  to  obtain  from  the  said  W.  J.  divers  of  the  moneys 
of  the  said  W.  J.,  amounting  to  the  sum  of  five  hundred  pounds, 
for  the  pretended  purpose  of  obtaining  such  deeds  from  such 
friend  of  the  said  C.  R.,  and  to  cheat  and  defraud  the  said  W.  J. 
of  the  same,  and  mutually  to  aid  and  assist  one  another  in  carry- 
ing out  and  putting  into  execution  the  said  unlawful  and  wicked 
combination,  conspiracy,  confederation, and  agreement;  whereas, 
in  truth  and  in  fact,  no  such  deeds  as  in  this  count  mentioned 
then  or  ever  had  any  existence  whatsoever ;  to  the  great  injury 
and  deception  of  the  said  W.  J.,  and  against  the  peace,  &c. 

Fourth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  J.  A.  and  C.  R.  afterwards,  to  wit,  on  the 
day  and  year  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  Central  Crim- 
inal Court,  unlawfully  and  wickedly  did  conspire,  combine,  con- 
federate, and  agree  together,  and  with  divers  other  evil  disposed 
persons,  whose  names  to  the  jurors  aforesaid  are  as  yet  unknown, 
by  divers  false  pretences,  and  by  divers  false,  artful,  indirect,  de- 
ceitful, and  fraudulent  means,  devices,  arts,  stratagems,  and  con- 
trivances, to  obtain  and  acquire  into  their  hands  and  possession, 
550 


FALSE    PRETENCES.  (569) 

of  and  from  the  said  W.  J.,  divers  of  his  moneys,  amounting  to 
a  large  sum,  to  wit,  the  sum  of  five  hundred  pounds,  and  to  cheat 
and  defraud  him  of  the  same,  to  the  great  injury  and  deception 
of  the  said  W.  J.,  against  the  peace,  &c.,  and  contrary  to  the 
from  of  the  statute,  &c. 

(569)  For  pretending  to  an  attesting  justice  and  a  recruiting  ser- 
geant that  defendant  was  not  an  apprentice^  and  thereby  ob- 
taining money  to  enlist.Qi) 

That  on,  &c.,  one  D.  K.,  then  being  a  sergeant  in  the  invalid 
battalion  of  the  royal  regiment  of  artillery  of  our  said  lady  the 
queen,  then  and  long  before  was  a  person  in  due  manner  ap- 
pointed and  authorized  to  enlist  persons  to  serve  our  said  lady 
the  queen  as  soldiers  in  the  corps  of  royal  military  artificers  and 
laborers,  and  that  one  S.  D.  had  then  lately  before  enlisted  with 
the  said  D.  K.,  to  serve  our  said  lady  the  queen  as  a  soldier  in 
the  said  corps  of,  &c.,  and  the  said  S.  D.,  on,  &c.,  at,  &c.,  in  order 
to  be  attested,  pursuant  to  the  statute  in  that  case  made  and 
provided,  did  in  his  proper  person  appear  before  H.  L.,  esquire, 
then  being  one  of  the  justices  of  our  said  lady  the  queen,  as- 
signed, &c.  And  the  jurors,  &c.,  do  further  present,  that  the  said 
S.  D.,  late  of,  &c.,  being  an  evil  disposed  person,  and  contriving 
and  intending  to  cheat  and  defraud  the  said  D.  K.  of  his  moneys, 
and  to  make  it  be  believed  that  he  the  said  S.  D.  was  at  liberty 
and  eligible  to  be  enlisted,  to  serve  our  said  lady  the  queen  as  a 
soldier  in  the  corps  of,  &c.,  on,  &c.,  with  force  and  arms,  at,  &c., 
aforesaid,  unlawfully,  knowingly,  and  designedly,  did  falsely  pre- 
tend to  the  said  H.  L.  (he  the  said  H.  L.  then  and  there  being 
such  justice  as  aforesaid,  and  then  and  there  having  sufficient 
and  competent  power  and  authority  to  attest  persons  to  serve 
our  said  lady  the  queen  as  soldiers  in  the  said  corps  of,  &c.),  that 
the  said  S.  D.  was  not  then  an  apprentice  (meaning  that  the  said 
S.  D.  then  and  there,  to  wit,  on,  &c.,  at,  &c.,  when  he  so  appeared 
before  the  said  H.  L.,  the  justice  aforesaid,  in  order  to  be  attested 
as  aforesaid,  was  not  an  apprentice,  and  that  he  the  said  S.  D. 

(h)  Dickinson's  Q.  S.  6th  ed.  335, (e);  1  Stark.  C  P.  474.  See  8  Vict.  cc.  8, 
9,  and  annual  mutiny  acts ;  also  R.  v.  Joseph  Jones,  1  Leach,  C.  C.  1 74.  The 
indentures  must  be  proved  by  a  subscribing  witness,  if  produced  (lb.)  ;  for  the 
guilt  of  the  offence  is  constituted  by  the  actual  and  legal  binding. 

551 


(570)  OFFENCES  AGAINST  PROPERTY. 

was  then  and  there  at  liberty  and  eligible  to  be  enlisted  to  serve 
our  said  lady  the  queen  as  a  soldier  in  the  said  corps),  by  means 
of  which  said  false  pretence,  he  the  said  S.  D.  unlawfully,  know- 
ingly, and  designedly  did  obtain  from  the  said  D.  K.  the  sum  of 
pounds,  of  the  proper  moneys  of  the  said  D.  K.,  with  in- 
tent to  cheat  and  defraud  the  said  D.  K.  of  the  same  ;  whereas, 
in  truth  and  in  fact,  the  said  S.  D.,  on,  &c.,  at,  &c.,  aforesaid,  at 
the  time  when  he  so  appeared  before  the  said  H.  L.,  the  justice 
aforesaid,  in  order  to  be  attested  as  aforesaid,  was  an  apprentice, 
and  was  not  at  liberty  and  eligible  to  be  enlisted  to  serve  our 
said  lady  the  queen  as  a  soldier  in  the  said  corps ;  and  whereas, 
in  truth  and  in  fact,  the  said  S.  D.  was  then,  to  wit,  on,  &c.,  an 
apprentice  to  G.  O. ;  and  whereas,  in  truth  and  in  fact,  the  said 
S.  D.  was  not  then,  to  wit,  on,  &c.,  at,  &c.,  at  liberty  and  eligible 
to  be  enlisted  to  serve  our  said  lady  the  queen  as  a  soldier  in  the 
said  corps  {insert  scienter),  against,  &c.,  and  against,  &c.  ( Con- 
clude as  in  book  1,  chapter  3.) 

(570)  For  obtaining  more  than  the  sum  due  for  carriage  of  a  parcel 
hy  frodueing  a  false  ticket.(i) 

That  A.  B.,  late  of,  &c.,  on,  &c.,  at,  &c.,  had  in  his  custody 
and  possession  a  certain  parcel,  to  be  by  him  delivered  to  Maria 
Countess  Dowager  of  Ilchester,  upon  the  delivery  of  which  he 
was  authorized  and  directed  to  receive  and  take  the  sum  of  six 
shillings  and  sixpence,  and  no  more,  for  the  carriage  and  porter- 
age of  the  same  ;  yet,  that  the  said  A.  B.  produced  and  delivered 
to  T.  H.,  then  being  a  servant  to  the  said  Countess  of  I.,  the  said 
parcel,  together  with  a  certain  false  and  counterfeit  ticket,  made 
to  denote  that  the  sum  of  nine  shillings  and  tenpence  was  charged 
for  the  carriage  and  porterage  of  the  said  parcel,  and  unlawfully, 
knowingly,  and  designedly  did  falsely  pretend  to  the  said  T.  H., 
that  the  said  false  and  counterfeit  ticket  was   a  just  and  true 

(j)  This  Avas  the  indictment  in  R.  v.  Douglass  (1  Campb.  212),  and  it  was 
holden,  upon  the  terms  of  30  Geo.  II.  c.  42,  that  a  basket  is  sufficiently  described 
as  a  parcel.  It  was  also  holden,  that  if'  money  (as  in  this  case)  be  obtained  from 
the  servant,  who  had  money  of  his  master  in  hand  at  the  time,  it  might  be  well 
laid  to  be  the  property  of  the  latter ;  but  if  he  had  not  money  enough  of  his  em- 
ployer in  his  hands  at  the  time,  such  master  cannot  be  stated  to  be  the  person 
defrauded. 

552 


FALSE   PRETENCES.  (•'^'T'l) 

ticket,  and  that  the  said  sum  of  nine  shillings  and  tenpence  had 
been  charged  and  was  dne  and  payable  for  the  carriage  and  por- 
terage of  the  said  parcel,  and  that  he  the  said  A.  B.  was  author- 
ized and  directed  to  receive  and  take  the  said  sum  of  nine  shil- 
lings and  tenpence  for  the  carriage  and  porterage  of  the  said 
parcel,  by  means  of  which  said  false  pretences  defendant  did 
unlawfully,  knowingly,  and  designedly  obtain,  of  and  from  the 
said  T.  H.,  the  sum  of  three  shillings  and  fourpence,  of  the 
moneys  of  the  said  countess,  with  intent  to  cheat  and  defraud 
her  of  the  same,  whereas,  in  truth  and  in  fact,  &c.  [Negative 
the  pretences^  and  conclude  as  before.) 

(571)  Pretences  that  defendant  had  no  note  protested  for  non-'pay- 
ment.,  that  he  was  solvent^  and  worth  from  nine  to  ten  thousand 
dollars. {j") 

That  C.  H.,  late,  &c.,  being  a  person  of  an  evil  disposition, 
ill-name  and  fame,  and  of  dishonest  conversation,  and  devising 

(f)  People  V.  Haynes,  14  Wend.  546.  In  this  case  ultimately  there  was  a 
new  trial  given  by  the  Court  of  Errors,  on  the  ground  that  where  a  purchase  of 
merchandise  is  made,  the  goods  selected,  put  in  a  box,  and  the  name  of  the  pur- 
chaser and  his  place  of  residence  marked  thereon,  and  the  box  containing  the 
goods  sent  by  the  vendor  and  put  on  board  a  steamboat  designated  by  the  pur- 
chaser, to  be  forwarded  to  his  residence,  the  sale  is  complete,  and  the  goods  be- 
come the  properly  of  the  purchaser. 

And  where  after  such  delivery,  the  vendor,  on  receiving  information  inducing 
him  to  suspect  the  solvency  of  the  purchaser,  expressed  an  intention  to  reclaim 
the  goods,  and  the  purchaser  thereupon  made  representations  in  respect  to  his 
ability  to  pay,  by  means  of  which  the  vendor  abandoned  his  intention,  and  the 
purchaser  was  then  indicted,  charged  with  the  offence  of  having  obtained  the 
goods  by  false  pretences,  the  representations  made  by  him  being  alleged  as  false 
pretences,  it  was  held,  that  the  sale  being  complete  before  the  representations 
were  made,  the  defendant  could  not  be  considered  guilty  of  the  crime  charged 
against  him. 

The  above  were  the  only  points  adjudged  in  the  decision  of  the  case  ;  the 
court  declining  to  pass  upon  the  other  questions  presented  by  the  bill  of  excep- 
tion. Those  questions  are  :  1.  Whether,  admitting  the  representations  made  by 
the  defendant  to  have  been  made  previous  to  the  completion  of  the  sale,  and  that 
thereby  the  vendors  were  induced  to  give  him  credit,  such  representations  can 
■properly  he  considered  false  pretences  tvithin  the  meaning  of  the  statute;  and  2. 
Whether  when,  as  in  this  case,  several  pretences  are  alleged  to  have  been  made, 
and  are  averred  to  be  folse,  the  public  prosecutor  is  bound  to  prove  all  the  pre- 
tences to  be  false,  or  whether  it  is  sufficient  for  less  than  all  to  be  false,  provided 
that  enough  be  proved  to  authorize  the  jury  to  say  that  those  proved  had  so  ma- 

553 


(571)  OFFENCES  AGAINST  PROPERTY. 

and  intending,  by  unlawful  ways  and  means,  to  obtain  and  get 
into  his  hands  and  possession  the  moneys,  valuable  things, 
terial  an  effect  in  procuring  the  credit,  or  in  inducing  the  delivery  of  the  prop- 
erty, that  without  the  influence  of  such  pretences  upon  the  mind  of  the  party 
defrauded,  he  would  not  have  given  the  credit  or  parted  with  the  property, 
These  questions  being  of  an  interesting  character,  and  having  been  fully  dis- 
cussed by  the  chancellor  and  senator  Tracy,  the  conclusions  at  which  they  sev- 
erally arrived  are  here  presented. 

Conclusions  arrived  at  by  the  chancellor,  in  the  opinion  delivered  by  him:  — 

"  A  bill  of  exception  cannot  be  presented  in  a  criminal  case,  to  review  the 
charge  of  the  court,  or  the  finding  of  the  jury  upon  mere  matters  of  fact,  where 
there  has  been  no  erroneous  decision  uj^on  the  matters  of  law. 

"  Whether  it  is  competent  for  a  court  to  grant  a  new  trial  in  a  case  of  felony, 
at  the  instance  of  the  defendant,  where  there  has  been  a  palpable  misdiscretion 
of  the  court  upon  the  mere  matters  of  fact,  or  a  verdict  clearly  against  the  weight 
of  evidence  without  such  misdiscretion,  where  no  erroneous  decision  in  point  of 
law  is  made,  qucere. 

"  It  is  not  necessary  to  constitute  the  offence  of  ohiaininrj  goods  by  false  pre- 
tences, that  the  owner  should  have  been  induced  to  part  with  his  property  solely 
and  entirely  by  pretences  lohich  loere  false.  If  the  jury  are  satisfied  that  the 
pretences  proved  to  have  been  false  and  fraudulent  were  a  part  of  the  moving 
causes,  inducing  the  owner  to  part  with  his  property,  and  that  the  defendant 
would  not  have  obtained  the  goods,  had  not  the  false  pretences  been  superadded 
to  statements  which  may  have  been  true,  or  to  other  circumstances  having  a 
partial  influence  upon  the  mind  of  the  owner,  they  will  be  justified  in  finding 
the  defendant  guilty  of  the  offence  charged  within  the  letter,  as  well  as  within 
the  spirit  of  the  act. 

"  In  the  present  case,  although  all  the  pretences  stated  in  the  indictment,  as 
those  upon  the  strength  of  which  the  goods  were  obtained,  are  charged  to  be 
false  ;  still,  if  either  of  them  was  in  fact  false,  was  intended  to  deceive  the  own- 
ers of  the  gogds,  and  induce  them  to  part  with  their  property,  and  produced 
that  effect,  the  indictment  was  sustained;  one  false  pretence  is  suflicient  to  con- 
stitute the  crime,  although  other  false  pretences  are  charged. 

"  To  constitute  the  offence  of  obtaining  goods  by  false  pretences,  it  is  not 
necessary  that  any  fdse  token  should  be  used,  or  that  the  false  pretences  should 
be  such  as  that  ordinary  care  and  common  prudence  were  not  suflicient  to  guard 
against  the  deception. 

"  The  offence  consists  in  intentionally  and  fraudidently  inducing  the  owner  to 
part  with  his  goods  or  other  things  of  value,  either  by  a  wilful  falsehood,  or  by 
the  offender  assuming  a  character  he  does  not  sustain,  or  by  representing  him- 
self to  be  in  a  station  which  he  knows  he  does  not  occupy. 

"  As  to  the  ownership  of  the  goods  at  the  time  of  the  making  of  the  repre- 
sentations, the  chancellor  was  of  opinion,  that  the  delivery  of  the  property  on 
board  of  the  steamboat,  for  the  purpose  for  Avhich  it  was  delivered,  divested  the 
vendors  not  only  of  the  possession,  but  of  the  title  to  the  goods ;  —  that  they, 
however,  had  the  right  of  stoppage  in  transitu  in  case  of  the  insolvency  of  the 

654 


FALSE   PRETENCES.  (^'^1) 

goods,  chattels,  personal  property,  and  effects  of  the  honest  and 
good  people  of  the  State  of  New  York,  to  maintain  his  idle  and 
profligate  course  of  life,  on,  &c.,  at,  &c.,  with  intent  feloniously 
to  cheat  and  defraud  F.  S.  C,  C.  A.,  and  J.  H.  S.,  then  and 
there  copartners  in  business,  under  the  firm  of  C,  A.,  and  Co., 
did  then  and  there  feloniously,  unlawfully,  knowingly,  and  de- 
signedly falsely  pretend  and  represent  to  C.  A.,  being  such  co- 
purchaser  ;  but  that  to  reinvest  themselves  with  the  right  of  property  and 
possession  of  the  goods,  they  were  bound  to  take  corporal  possession  of  them,  or 
to  give  notice  to  the  carrier  not  to  deliver  them  to  the  purchaser,  or  to  do  some 
other  equivalent  act.  Not  having  done  so,  the  property  in  the  goods  was  in  the 
defendant,  and  consequently  he  did  not  obtain  the  j^ossession  or  delivery  of  them 
by  means  of  the  false  preterices  stated  in  the  indictment ;  and  although  he  prob- 
ably by  his  false  representations  prevented  the  vendors  from  exercising  the  right 
of  stoppage  in  transitu,  still  he  could  not  be  convicted  of  the  charge  oi'  obtaining 
the  goods  by  false  pretences  ;  for  which  reason,  and  that  alone,  he  was  of  opin- 
ion that  the  judgment  of  the  Supreme  Court  ought  to  be  revised." 

Conclusions  arrived  at  by  Senator  Tracy,  in  the  opinion  delivered  by  him :  — 

"  The  delivery  on  board  the  steamboat  under  the  circumstances  of  the  case, 
was  an  absolute  delivery,  and  vested  in  the  purchaser  not  only  the  possession 
but  the  title  to  the  goods ;  and  even  if  the  vendors  had  the  right  of  stoppage  in 
transitu,  in  case  of  insolvency  of  the  purchaser,  the  existence  of  that  right  did 
not  render  the  delivery  conditional,  nor  could  the  exercise  of  it  divest  the  pur- 
chaser of  the  ownership  of  the  goods.  The  representations  relied  on  as  false 
pretences  being  subsequent  to  such  delivery,  if  they  could  be  considered  as  false 
pretences,  would  not  therefore  subject  the  defendant  to  the  charge  of  obtaining 
the  goods  by  false  pretences. 

"  Where  there  are  several  pretences  alleged  in  the  indictment  to  be  false,  all 
must  be  proved  to  be  false.  The  offence  consists  of  two  distinct  elements,  to  wit, 
false  pretences,  and  obtaining  goods  of  another.  All  the  pretences  together  con- 
stitute but  one  portion  of  the  offence  ;  and  every  pretence,  therefore,  set  forth 
and  alleged  to  be  false,  is  a  substantive  or  constituent  elemeirt  of  the  offence,  and 
cannot  be  deemed  immaterial ;  the  petit  Jury  can  convict  only  upon  the  pre- 
tences found  by  the  grand  jury,  as  it  cannot  be  known  that  they  would  have 
found  the  bill  true,  unless  it  had  been  proved  before  them  that  all  the  pretences 
found  to  have  been  made,  had  in  fact  been  made  and  falsely  made. 

"  The  words  other  false  pretence,  in  the  statute,  considered  in  connection  with 
the  other  terms  used,  and  the  circumstances  under  which  the  statute  30  Geo. 
II.  was  passed,  upon  which  oars  is  founded,  meant  not  a  bare  naked  He,  unac- 
companied with  any  artful  contrivance  fitted  to  deceive,  although  intentionally 
and  fraudulently  told,  with  the  purpose  of  obtaining  the  property  of  another  ; 
but  they  mean  an  ar fully  contrived  story,  which  would  naturally  have  the  effect 
upon  the  mind  of  the  person  addressed,  equivalent  to  a,  false  token  or  false  writ- 
ing,—  an  ingenious  contrivance,  an  unusual  artifice,  against  which  common 
saofacity  and  the  exercise  of  ordinary  caution  is  not  a  sufficient  guard." 

565 


(571)  OFFENCES  AGAINST  PROPERTY. 

partner,  that  he,  the  said  C.  H.,  had  then  no  note  protested  for 
non-payment,  that  he  was  then  solvent  and  worth  from  nine  to 
ten  thousand  dollars  after  the  payment  of  all  his  debts,  that  he 
was  perfectly  easy  in  his  money  concerns,  that  he  had  no  indorser, 
and  that  he  had  never  indorsed  more  than  one  note.  And  the 
said  C  A.  then  and  there  believing  the  said  false  pretences  and 
representations,  so  made  as  aforesaid  by  the  said  C.  H.,  and 
being  deceived  thereby,  was  induced,  by  reason  of  the  false  pre- 
tences and  representations  so  made  as  aforesaid,  to  deliver,  and 
did  then  and  there  deliver,  to  the  said  C.  H.  five  pieces  of  gros  de 
nap,  of  the  value  of  thirty  dollars  for  each  piece ;  two  pieces  of 
gros  de  Swiss,  of  the  value  of  eighty  dollars  each  piece ;  one 
piece  of  bombazine,  of  the  value  of  sixty-four  dollars ;  nine  dozen 
of  belt  ribbons,  of  the  value  of  three  dollars  and  fifty  cents  each 
dozen ;  two  pieces  of  black  silk  velvet,  of  the  value  of  thirty 
dollars  each  piece;  one  piece  of  silk,  of  the  value  of  one  hundred 
dollars ;  eight  pieces  of  satin  levantine,  of  the  value  of  fifteen 
dollars  each  piece ;  four  pieces  of  figured  vestings,  of  tiie  value 
of  fifteen  dollars  each  piece;  of  the  proper  valuable  things,  goods, 
chattels,  and  effects  of  the  said  F.  S.  C,  C.  A.,  and  J.  H.  S.,  and 
the  said  C.  H.  did  then  and  there  designedly  receive  and  obtain 
the  said  goods,  chattels,  and  effects  of  the  said  F.  S.  C,  C.  A., 
and  J.  H.  S.,  of  the  proper  valuable  things,  goods,  chattels,  and 
effects  of  the  said  F.  S.  C,  C.  A.,  and  J.  H.  S.,  by  means  of  the 
false  pretences  and  representations  aforesaid,  and  with  intent 
feloniously  to  cheat  and  defraud  the  said  F.  S.  C,  C.  A.,  and 
J.  H.  S.  of  the  said  goods,  chattels,  and  effects ;  whereas,  in  truth 
and  in  fact,  the  said  C.  H.  at  that  time  had  a  note  protested  for 
non-payment;  and\vhereas,  in  truth  and  in  fact,  the  said  C.  H.  was 
then  insolvent  and  unable  to  pay  his  debts ;  and  whereas,  in  truth 
and  in  fact,  the  said  C  H.  was  not  then  easy  in  his  money  con- 
cerns, but  on  the  contrary  thereof,  greatly  embarrassed  in  his 
affairs ;  and  whereas,  in  truth  and  in  fact,  the  said  C.  H.  had 
indorsers;  and  whereas,  in  truth  and  in  fact,  the  said  C.  H.  was 
at  that  time  an  indorser  for  persons  to  the  jurors  unknown  ;  and 
whereas,  in  fact  and  truth,  the  pretences  and  representations  so 
made  as  aforesaid,  by  the  said  C.  H.  to  the  said  C.  A.,  was  and 
were  in  all  respects  utterly  false  and  untrue,  to  wit,  on  the  day 
and  year  last  aforesaid,  at  the  ward,  city,  and  county  aforesaid  ; 
656 


FALSE   PRETENCES.  (572) 

and  whereas,  in  fact  and  in  truth,  the  said  C.  H.  well  knew  the 
said  pretences  and  representations,  so  by  him  made  as  aforesaid 
to  the  said  C.  A.,  to  be  utterly  false  and  untrue  at  the  time  of 
making  the  same. 

And  so  the  jurors  aforesaid,  on  their  oath'a foresaid,  do  say,  that 
the  said  C.  H.,  by  means  of  the  false  pretences  aforesaid,  on,  &c., 
at,  &c.,  feloniously,  unlawfully,  falsely,  knowingly,  and  designedly 
did  receive  and  obtain  from  the  said  F.  S.  C,  C.  A.,  and  J.  H.  S. 
the  said  goods,  chattels,  and  effects,  of  the  proper  valuable  things, 
goods,  chattels,  and  effects  of  the  said  F.  S.  C,  C.  A.,  and  J.  H.  S., 
with  intent  feloniously  to  cheat  and  defraud  them  of  the  same, 
against,  &c.,  and  against,  &c.    ( Conclude  as  in  book  1,  chapter  3.) 

(572)  Obtaining  acceptances  on  drafts,  by  pretence  that  certain  goods 
had  been  purchased  by  defendant  and  were  about  to  be  shipped 
to  prosecutor. 

That  S.  M.,  late,  &c.,  wickedly  devising  and  intending  to  cheat 
and  defraud  W.  C.  Jr.,  and  P.  P.  G.,  copartners,  trading  under 
the  firm  of  C.  and  G.,  of  their  goods,  chattels,  moneys,  and 
properties,  on,  &c.,  at,  &c.,  did  request  and  solicit  them  the  said 
W.  and  P.,  trading  as  aforesaid,  to  accept  certain  drafts  or  bills 
of  exchange  drawn  by  him  the  said  S.  M.  on  them  the  said  C. 
and  G.,  for  the  sum  of  three  thousand  dollars  each,  both  dated 
Philadelphia,  May  twenty-sixth,  one  thousand  eight  hundred  and 
forty-seven,  one  payable  forty  days  after  date,  the  other  payable 
sixty  days  after  date,  and  both  being  drawn  to  the  order  of  him 
the  said  S. ;  and  as  the  inducement  for  them  the  said  W.  and  P., 
trading  as  aforesaid,  to  accept  the  said  drafts  or  bills  of  exchange, 
he  the  said  S.  did  then  and  there  unlawfully,  and  fraudulently, 
and  designedly  pretend  to  the  said  W.  C,  Jr.,  then  and  there 
being  copartner  as  aforesaid,  that  he  the  said  S.  M.  had  pur- 
chased and  had  in  Pittsburg,  ready  for  shipment,  nineteen  thou- 
sand barrels  of  flour,  and  about  fifty  thousand  bushels  of  wheat, 
rye,  corn,  and  oats ;  and  that  if  he,  the  said  W.  C.  Jr.,  partner 
as  aforesaid,  would  accept  the  said  two  drafts  above  described, 
he  the  said  S.  would  go  out  to  Pittsburg  and  ship  them,  the  said 
C.  and  G.,  two  thousand  barrels  of  flour  to  cover  the  said  two 
drafts,  and  that  he  the  said  S.  had  already  ordered  to  be  shipped 
to  them  the  said  C.  and  G.  one  thousand  barrels  of  flour,  to  cover 

657 


(572)  OFFENCES   AGAINST   PfiOPERTY. 

a  certain  other  draft  or  bill  of  exchange  then  before  drawn  by  the 
said  S.  on  the  said  C.  and  G.,  for  the  sum  of  six  thousand  three 
hundred  and  seventy-nine  dollars  and  seventy-six  cents,  and  duly 
accepted  by  the  said  C.  and  G.,  and  then  remaining  unpaid, 
whereas,  in  truth  and  fact,  he  the  said  S.  had  not  purchased,  and 
had  not  in  Pittsburg  ready  for  shipment,  nineteen  thousand  bar- 
rels of  flour,  and  about  fifty  thousand  bushels  of  wheat,  rye,  corn, 
and  oats,  and  he  the  said  S.  did  not  intend  to  go  out  to  Pitts- 
burg and  ship  to  them  the  said  C.  and  G.  two  thousand  barrels 
of  flour,  to  cover  the  said  two  drafts  of  three  thousand  dollars 
each,  then  asked  to  be  accepted,  and  he  the  said  S.  had  not  or- 
dered to  be  shipped  to  said  C.  and  G.  one  thousand  barrels  of 
flour,  to  cover  and  secure  the  payment  of  the  said  other  draft  of 
six  thousand  three  hundred  and  seventy-nine  dollars  and  seventy- 
six  cents,  drawn  by  the  said  S.  as  aforesaid,  and  he  the  said  S. 
then  and  there  well  knew  the  said  pretence  and  pretences  to 
be  false  and  fraudulent;  by  color  and  means  of  which  said 
false  pretence  and  pretences,  he  the  said  S.  did  then  and  there 
unlawfully  and  with  intent  to  cheat  and  defraud  them,  the  said 
C.  and  G.,  procure  and  obtain  the  acceptance  of  the  said  firm  of 
C.  and  G.  from  the  said  W.  C.  Jr.,  then  and  there  being  partner 
as  aforesaid,  to  and  upon  the  said  two  drafts  of  three  thousand 
dollars  each,  by  the  writing  of  the  name  of  the  said  C.  and  G. 
on  the  face  of  the  said  drafts,  which  said  drafts  respectively  are 
of  the  tenor  and  effect  following,  to  wit :  — 

«  Dollars  3,000.  Philadelphia,  May  26th,  1847. 

"  Forty  days  after  date  please  pay  to  my  own  order  three  thou- 
sand dollars,  and  charge  the  same  to  account  of,      Yours,  &c., 

S.  M." 

"  To  Messrs.  C.  and  G.,  Philadelphia." 

[Accepted  —  C.  and  G]. 
"  Dollars,  3,000.  Philadelphia,  May  26th,  1847. 

"  Sixty  days  after  date  please  pay  to  my  own  order  three  thou- 
sand dollars,  and  charge  same  to  account  of,  Yours,  &c., 

S.  M." 
, «  To  Messrs.  C.  and  G.,  Philadelphia." 

[Accepted —  C.  and  G]. 
being  then   and  there  the   said  two  drafts,  of  the  value  of  six 
thousand  dollars.     And  the  inquest  aforesaid  do  further  present, 
558 


FALSE   PRETENCES.  (578) 

that  afterwards,  to  wit,  on,  &c.,  the  said  S.  M.,  the  said  drafts 
being  so  accepted  by  the  said  C.  and  G.,  indorsed  the  same  in 
blank,  and  that  afterwards,  to  wit,  at  the  respective  dates  and 
times  when  the  said  drafts  so  accepted  became  due  and  payable 
according  to  the  tenor  thereof  respectively,  they  the  said  C.  and 
G.,  by  reason  of  the  said  acceptances,  were  obliged  to  pay  the 
amounts  thereof,  and  did  pay  the  sum  of  six  thousand  dollars  in 
cash,  being  then  and  there  the  moneys  of  the  said  W.  C.  Jr.  and 
P.  P.  G.,  trading  as  C.  and  G.,  to  the  great  damage  of  them  the 
said  C.  and  G.,  contrary,  &c.,  and  against,  &c.  {Conclude  as  in 
book  1,  chapter  3.) 

(573)    Obtaining  acceptances  hy  the  pretence  that  defendants  had  cer- 
tain goods  in  storage  subject  to  prosecutor'' s  order. (Jc) 

That  J.  J.  M..  late,  &c.,  with  intent  to  and  contriving  and  in- 
tending unlawfully,  fraudulently,  designedly,  and  deceitfully  to 
cheat  and  defraud  O.  P.  P.  and  W.  T.  E.,  who  at  the  time  here- 
inafter mentioned,  to  wit,  on  the  ninth  day  of  June,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  forty-five,  were  co- 
partners in  trade,  under  the  firm  of  P.  and  E.,  of  the  said  city 
and  county,  on,  &c.,  at,  &c.,  did  falsely,  unlawfully,  knowingly, 
and  designedly  pretend  and  state  to  the  said  O.  P.  P.  and  W.  T. 
E.,  then  copartners  as  aforesaid,  that  he  the  said  J.  J.  M.  and  a 
certain  D.  E.  T.,  then  copartners  in  trade,  under  the  firm  of  T. 
and  M.,  of  the  City  of  New  York,  then  had  received  from  cer- 
tain persons  trading  together,  under  the  firm  of  S.  and  S.,  on 
storage,  in  certain  warehouses  of  the  said  firm  of  said  T.  and 
M.,  in  the  said  City  of  New  York,  numbered  24',  26,  28,  and  30 
Leonard  Street,  twenty-two  hundred  barrels  of  cistern  sugars, 
and  they  the  said  J.  J.  M.  and  D.  E.  T.,  copartners  as  aforesaid, 
had  agreed  to  hold  the  same  subject  to  the  order  of  the  said  firm 
of  S.  and  S.,  and  that  the  said  T.  and  M.  then  had  and  held  the 
same  twenty-two  hundred  barrels  of  cistern  s^ugars  in  the  ware- 
houses aforesaid,  and  the  said  J.  J.  M.  did  then  and  there  execute 
a  certain  paper  writing,  in  the  words  and  figures  following,  to 
wit:  "  Philadelphia,  June  9th,  1845,  received  from  Messrs.  S.  and 
S.,  on  storage  in  our  warehouses,  at   Nos.  24,  26,  28,  and  30 

(Jc)  This  count  was  drawn  by  eminent  counsel  in  Philadelphia,  in  1847.  The 
defendant  was  acquitted. 

659 


(574)  OFFENCES   AGAINST   PROPERTY. 

Leonard  Street,  New  York,  twenty-two  hundred  barrels  of  cistern 
sugars,  which  we  agree  to  hold  subject  to  their  order.  T.  and 
M."  And  the  said  firm  of  S.  and  S.  did  then  and  there  indorse 
the  said  paper  writing  with  the  following  indorsement:  "Deliver 
the  within  to  the  order  of  Messrs.  P.  and  E.  S.  and  S."  And 
the  said  J.  J.  M.  did  then  and  there  deliver  to  the  said  O.  P.  P. 
and  W.  T.  E.,  copartners  as  aforesaid,  the  said  paper  writing ; 
whereas,  in  truth  and  in  fact,  the  said  J.  J.  M.  and  D.  E.  T.,  co- 
partners as  aforesaid,  had  not  received  the  said  twenty-two  hun- 
dred barrels  of  cistern  sugars  in  the  said  warehouses,  nor  had 
they  the  said  twenty-two  hundred  barrels  of  cistern  sugars  in 
said  warehouses,  nor  had  they  any  such  warehouses  as  the  said 
J.  J.  M.  did  then  and  there,  to  wit,  on  the  day  and  year  aforesaid, 
at  the  city  and  county  aforesaid,  falsely  pretend  and  state  to  the 
said  O.  P.  P.  and  W.  T.  E,,  then  copartners  as  aforesaid.  And 
the  inquest  aforesaid,  on  their  oaths  and  affirmations  aforesaid, 
do  further  present  and  say,  that  the  said  J.  J.  M.  did  designedly, 
by  the  false  pretences  aforesaid,  with  intent  to  cheat  and  defraud 
the  said  O.  P.  P.  and  W.  T.  E.,  under  the  name  and  firm  of  P. 
and  E.,  then  and  there,  to  wit,  on,  &c.,  at,  &c.,  obtain  from  the 
said  O.  P.  P.  and  W.  T.  E.,  then  copartners  as  aforesaid,  their 
acceptance  of  the  following  drafts  or  bills  of  exchange,  drawn 
by  the  said  J.  J.  M.  and  D.  E.  T.,  copartners  as  aforesaid,  upon 
the  said  P.  and  E.,  in  favor  of  themselves,  the  said  T.  and  M., 
&c.  [setting'  forth  drafts  as  in  last  form),  to  the  great  damage  of 
them  the  said  O.  P.  P.  and  W.  T.  E.,  copartners  as  aforesaid,  to 
the  evil  example  of  all  others  in  like  cases  offending,  against, 
&c.,  and  contrary,  &c.     ( Conclude  as  in  book  1,  chapter  3.) 

(Add  other  counts,  setting-  forth  specially  the  bills  obtained,  SfC.) 

(574)  For  receiving  goods  obtained  by  false  pretences,  under  the 
English  statute.(J) 

That  A.  B.,  late  of,  &c.,  on,  66c.,  at,  &c.,  unlawfully,  know- 
ingly, and  fraudulently  did  receive  ten  gold  watches,  of  the  value 
of  one  hundred  pounds,  of  the  goods  and  chattels  of  E.  F.,  by 
one  C.  D.  then  lately  before  unlawfully  obtained  from  the  said 
E.  F.  by  false  pretences,{m)  that  is  to  say,  by  falsely  pretending 

(/)  Dickinson's  Q.  S.  Gth  ed.  444. 

(m)  Essential  to  be  stated :  as  also  that  the  receiver  knew  tlicm  to  be  so  un- 

560 


FALSE   PRETENCES.  (574) 

that  he,  the  said  C.  D.,  was  the  servant  of  one  G.  H.,  and  had 
been  sent  by  the  said  G.  H.  for  the  said  watches,  to  be  inspected 
by  him,  whereas,  in  truth  and  in  fact,  he,  the  said  C.  D.,  was  not 
the  servant  of  the  said  G.  H.,  nor  sent  by  him  for  the  said 
watches  to  be  inspected  by  him,  or  for  any  other  purpose  what- 
ever; he,  the  said  A.  B.,  at  the  time  he  so  received  the  said  gold 
watches,  on,  &c.,  at,  &c.,  then  and  there  well  knowing  the  same 
to  have  been  so  unlawfully  obtained  by  the  said  C.  D.  from  the 
said  E.  F.  by  false  pretences  aforesaid  ;  against,  &c.,  and  against, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

lawfully  obtained.     Reg.  v.  Frances  Wilson,  2  Mood.  C.  C.  52.     "  Unlawfully- 
taken  and  carried  away,"  will  not  suffice,  S.  C.     Dickinson's  Q.  S.  6th  ed.  444. 
VOL.  I. -36  561 


(675)  OFFENCES  AGAINST  PROPEETT. 


CHAPTER  XL 

DESTROYING  A  VESSEL  AT  SEA,  ETC.(a) 

(575)  Sinking  and  destroying  a  vessel,  the  parties  not  being  owners  in 

whole  or  in  part,  under  the  U.  S.  statute. 

(576)  Casting  aAvay  a  vessel  with  intent  to  prejudice  the  owners,  under 

the  English  statute. 

(575)  Sinking  and  destroying  a  vessel^  the  parties  not  being  owners  in 
whole  or  in  part,  under  the  U.  S.  statute.Qi) 

That  A.  B.,  &c.,  late,  &c.,  and  C.  D.,  late,  &c.,  at,  &c.,  on,  &c., 
on  the  high  seas,  out  of  the  jurisdiction  of  any  particular  state 
of  the  United  States  of  America,  within  the  admiralty  and  mari- 
time jurisdiction  of  the  United  States,  and  within  the  jurisdic- 
tion of  this  court,  they  the  said  then  and  there  belonging  to 
a  certain  vessel,  being  a  called  the  which  said 
was  not  owned  in  whole  or  in  part,  either  jointly  or  severally  by 
them,  the  said  or  either  of  them,  and  which  said  was 
then  and  there  the  property  of  some  person  or  persons  to  the 
jurors  aforesaid  as  yet  unknown,  they  the  said  then  and 
there  on  the  day  of  aforesaid,  being  in  and  on  board 
the  said  on  the  high  seas  as  aforesaid,  did  then  and  there 
feloniously,  wilfully,  and  corruptly  cast  away  and  destroy  the 
said  called  the  against,  &c.,  and  against,  &c.  ( Con- 
clude as  in  book  1,  chapter  3.) 

Second  count. 

{Same  as  first  count,  substituting)  :  "was  then  and  there  the 
property    of  then    and    still  being   citizens  of  the    United 

States  of  America,"  for   "  was  then  and  there  the  property  of 
some  person  or  persons  to'  the  jurors  aforesaid  as  yet  unknown." 

(a)  Sec  for  prosecution  for  burning  a  vessel,  &c.,  U.  S.  v.  Lockman,  1  Best. 
L.  Rep.  N.  S.  151,  Aug.  1848.     See  also  Wh.  C.  L.  §§  2907-14. 

(i)  This  form  was  used  in  U.  S.  v.  Snow,  in  New  York,  in  1847,  without  ex- 
ception being  taken  to  it. 

562 


DESTROYING    A    VESSEL    AT   SEA,    ETC.  (575) 

Third  count. 
That  A.  B.  and  C.  D.,  late,  &c.,  heretofore,  on,  &c.,  the  said 
then  and  there  belonging,  in  the  capacity  of  master  [or 
otherwise)^  to  a  certain  vessel,  being  a  called  the  the 

property  of  a  certain  citizen  or  citizens  of  the  United  States  of 
America,  to  wit,  of  and  the  said  then  and  there  be- 

longing to  the  said  called  the  in  the  capacity  of  mate 

{or  otherwise),  of  which  said  they  the  said  were  not 

owners,  nor  was  either  of  them  an  owner,  did  then   and  there 
feloniously,  wilfully,  and  corruptly  cast  away  and  destroy  the  said 
called  the  against,  &c.,  and  against,  &c.    [Conclude  as 

in  hook  1,  chapter  3.) 

Fourth  count. 

That  A.  B.,  late,  &c.,  and  C.  D.,  late,  &c.,  heretofore,  &c.,  did 
then  and  there,  in  and  on  bqard  of  a  certain  vessel,  being  a 
called  the  the  property  of  then  and  still  being  citi- 

zens of  the  United   States  of  America,  to  which  said  they 

the  said  then  and  there  belonged,  the  said  as 

and  the  said  as  and  of  which   said  the   said 

were  not  owners,  nor  was  either  of  them  an  owner,  felo- 
niously, wilfully,  and  corruptly  procure  the  said  called  the 

to  be  cast  away  and  destroyed,  against,  &c.,  and  against, 
&c.     ( Conclude  as  in  book  1,  chapter  3.) 

Fifth  count. 

That  the  said  A.  B.  and  the  said  C.  D.,  heretofore,  to  wit,  on, 
&c.,  did  then  and  there,  in  and  on  board  of  a  certain  vessel,  be- 
ing a  called  the  the  property  of  a  certain  person  or 
persons,  being  a  citizen  or  citizens  of  the  United  States  of  Amer- 
ica, to  the  said  jurors  unknown,  to  which  said  they  the  said 
then  and  there  belonged,  and  of  which  said  the  said 
were  not  owners,  nor  was  either  of  them  an  owner,  felo- 
niously, wilfully,  and  corruptly  cast  away  and  destroy  the  said 
called  the           against,  &c.,  and  against,  &c.    ( Conclude  as 
in  book  1,  chapter  3.) 

Sixth  count. 

That  the  said  A.  B.  and  the  said  C.  D.,  on,  &c.,  at,  &c.,  be- 
longed to  a  certain  vessel,  being  a  called  the  and 

663 


(575)  OFFENCES  AGAINST  PROPERTY. 

were  then  and  there,  in  and  on  board  the  said  the  said 

in  the  capacity  of  and  the  said  in  the   capacity  of 

the  said  not  being  owners,  either  in  whole  or  in  part, 

nor  either  of  them  being  an  owner,  either  in  whole  or  in  part,  of 
the  said  but  the  said  being  then  and  there  the  prop- 

erty of  then  and  still  being  citizens  of  the  United  States 

of  America,  and  that  the  said  so  being  then  and  there  on 

the  high  seas  as  aforesaid,  i^  and  on  board  of  the  said  as 

aforesaid,  did  then  and  there,  with  force  and  arms,  feloniously, 
wilfully,  and  corruptly  make  a  certain  hole,  of  the  width  of 
inches,  and  of  the  depth  of  in  and  through  the  said 

by  means  of  and  through  which  said  hole,  so  made  as  aforesaid, 
the  sea  entered,  filled,  and  sunk  the  said  and  the  said 

did  then  and  there,  by  the  means  aforesaid,  feloniously,  wilfully, 
and  corruptly  destroy  said  against,  &c.,  and  against,  &c. 

( Conclude  as  in  book  1,  chapter  3.)    « 

Seventh  count. 

{Same  as  sixth  county  substituting) :  "  the  said  being  then 

and  there  the  property  of  a  certain  person  or  persons,  being  a 
citizen  or  citizens  of  the  said  United  States,  to  the  said  jurors  un- 
known,"ybr  "the  said  being  then   and  there  the  property 

of  then  and  still  being  citizens  of  the   United   States  of 

America." 

Eighth  count. 

{Same  as  sixth  county  substituting) :  "  feloniously,  wilfully,  and 
corruptly  procure  a  certain  hole,  of  the  width  of  inches,  and 

of  the  depth  of  to  be  made  in  and  through  the  starboard 

side  {or  otherwise)  of  the  said  by  means  of  and  through 

which  said  hole,  so  made  as  aforesaid,  the  sea  entered,  filled,  and 
sunk  the  said  and  so  the  said  did  then  and  there,  by 

the  means  last  aforesaid,  feloniously,  wilfully,  and  corruptly  pro- 
cure the  said  to  be  cast  away  and  destroyed," /or  "  feloni- 
ously, wilfully,  and  corruptly  make  a  certain  hole,  of  the  width 
of  inches  and  of  the  depth  of  in  and  through  the  said 
by  means  of  and  through  which  said  hole,  so  made  as 
aforesaid,  the  sea  entered,  filled,  and  sunk  the  said  and  the 
664 


DESTROYING   A   VESSEL   AT   SEA,    ETC.  (^76) 

said  did  then  and  there,  by  the  means  aforesaid,  feloniously, 

wilfully,  and  corruptly  destroy  said  ." 

{For  final  count,  see  ante,  17,  18,  181  w.,  239  n.) 

(576)   Casting  away  a  vessel  with  intent  to  prejudice  the  owners^  un- 
der the  English  statute. (^c^ 

That  E.  L.,  late,  &c.,  a  certain  vessel  called  the  D.,  the  prop- 
erty of  A.  H.  and  others,  on  a  certain  voyage  upon  the  high  seas 
then  being,  then  and  there,  upon  the  high  seas,  within  the  jurisdic- 
tion of  the  admiralty  of  England,  and  within  the  jurisdiction  of  the 
Central  Criminal  Court,  feloniously,  unlawfully,  and  maliciously 
did  cast  away  and  destroy,  with  intent  to  prejudice  the  said  A. 
H.  and  another,  being  part  owners  of  the  said  vessel,  against  the 
form  of  the  statute,  &c.  And  further,  &c.,  that  P.  M.,  &c.,  before 
the  said  felony  was  committed  in  form  aforesaid,  at  London 
aforesaid,  and  within  the  jurisdiction  of  the  said  Central  Criminal 
Court,  did  feloniously  and  maliciously  incite,  move,  aid,  counsel, 
hire,  and  command  the  said  E.  L.  the  said  felony,  in  manner  and 
form  aforesaid,  to  do  and  commit,  against,  &c.  (Conclude  as  in 
book  1,  chapter  S.) 

(c)  K.  V.  Wallace,  1  C.  &  M.  113. 

The  statute  1  Vict.  c.  89,  s.  6,  enacts,  that  "  whosoever  shall  unlawfully  and 
maliciously  set  fire  to,  or  in  any  wise  destroy  any  ship  or  vessel,  whether  the 
same  be  complete  or  in  an  unfinished  state,  or  shall  unlawfully  and  maliciously 
set"  fire  to,  cast  away,  or  in  any  l^^ise  destroy  any  ship  or  vessel,  with  intent 
thereby  to  prejudice  any  owner  or  part  owner  of  such  ship  or  vessel,  or  of  any 
goods  on  board  the  same,  or  any  person  that  hath  underwritten  or  shall  under- 
write any  policy  of  insurance  upon  such  ship  or  vessel,  or  the  freight  thereof,  or 
upon  any  goods  on  board  the  same,  shall  be  guilty  of  felony,"  &c.  The  11th 
sefction  of  the  same  statute  enacts,  that  "  in  the  case  of  every  felony  punish- 
able under  this  act,  every  principal  in  the  second  degree,  and  every  accessary 
before  the  fact,  shall  be  punishable  with  death  or  otherwise,  in  the  same  man- 
ner as  the  principal  in  the  first  degree  is  by  this  act  punishable,"  &c. 

565 


INDEX   TO    VOLUME  I. 


[the  figures  in  this  index  refer  to  the  forms.] 

ABDUCTION, 

under  New  York  Rev.  Sts.  vol.  2,  p.  553,  §  25,  200. 

Of  a  white  person,  under  Ohio  Stat.  p.  51,  §  14,  201. 

Attempt  to  carry  a  white  person  out  of  the  State,  under  Ohio 

statute,  202. 
Kidnapping.     Attempt  to  carry  off  a  black  person,  under  Ohio 

statute,  203. 
ABORTION. 

Production  of  abortion   at  common   law.     First  count.     By  as- 
sault and  thrusting  an  instrument  in  the  prosecutor's  womb, 

she  being  "  big,  quick,  and  pregnant,"  204. 

Second  count,  averring   prosecutrix  to  be   "big  and  preg- 
nant," 205. 
Third  count,  merely  averring  pregnancy  in  same,  206. 
Assault   on    a  woman  with    quick   child,  so  that   the  child  was 

brought  forth  dead.     (At  common  law),  207. 
Against  A.,  the  principal,  for  producing  an  abortion  by  using  an 

instrument  on  the  person  of  a  third  party,  and  B.,  an  accessary 

before  the  fact,  under  the  English  statute,  208. 
Administering  a  potion  at  common  law,  with  intent  to  produce 

abortion,  209. 
Producing  abortion  in  New  York,  2  Rev.  Sts.  550, 551,  §  9,  2ded. 

210. 
Same  in  Massachusetts  under  Stat.  1845,  ch.  27,  210^ 
Administering  medicine  under  the  Indiana  statute,  with  intent  t 

produce  abortion,  211. 
Attempt  to  procure  abortion  by  administering  a  drug,  under  Ohio 

statute,  212. 
ACCESSARIES, 

general  requisites  of  indictments  against,  97,  note. 
Time  of  trial  and  venire  of,  97,  note. 

667 


INDEX. 

C  CESS  ARIES.  —  Continued. 

Accessaries  before  the  fact,  who,  97,  note. 

Accessaries  after  the  fact,  97,  note.  t 

Principals  in  first  and  second  degrees,  97,  note. 
Indictments : 

Against  accessary  before  the  fact,  together  with  the  principal,  97. 

Against  an  accessary  before  the  fact,  the  principal  being  con- 
victed, 98. 

Against  an  accessary  after  the  fact  with  the  principal,  99. 

Against  an  accessary  after  the  fact,  the  principal  being  convicted, 
100. 

Against  an  accessary  before  the  fact  generally  in  Massachusetts, 
101. 

Indictment  against  an  accessary  before  the  fact  in  murder,  at 
common  law,  102. 

Against  accessaries  before  the  fact  in  Massachusetts,  103. 

Against  an  accessary  for  harboring  a  principal  felon  in  murder, 
104. 

Against  an  accessary  to  a  burglary  after  the  fact,  105. 

Against  principal  and  accessaries  before  the  fact  in  burglary,  106. 

Against  accessary  before  the  fact  to  suicide.  First  count  against 
suicide  as  principal  in  the  first  degree,  and  against  party  aid- 
ing him  as  accessary  before  the  fact,  107. 

Second  count  against  defendant  for  murdering  suicide,  108. 

Against  a  defendant  in  murder  who  is  an  accessary  before  the 
fact  in  one  county  to  a  murder  committed  in  another,  109. 

Larceny.     Against  principal  and  accessary  before  the  fact.  111. 

Against  accessary  for  receiving  stolen  goods,  112. 

Against  accessary  for  receiving  the  principal  felon,  113. 

[For  other  forms  of  indictments  against  accessaries  in  homicide, 
see  post,  132,  156,  &c.] 
ADDITION, 

how  to  be  set  forth,  2,  note. 
AFFIRMATIONS, 

of  grand  jury,  how  averred,  12,  note. 
ALABAMA, 

commencement  and  conclusion  of  indictment,  65,  66,  67. 
Indictments  in : 

Against  principal  in  first  and  second  degree  for  mayhem  in 
biting  off  an  ear,  195. 

Maliciously  breaking  prosecutor's  arm  with  intent  to  maim  him, 
197. 

668 


INDEX. 

APPRENTICE, 

killing  by  hard  treatment,  162,  &c. 
ARKANSAS, 

commencement  and  conclusion  of  indictment  in,  94,  95,  96. 
ARSON, 

general  frame  of  indictments  at  common  law,  389. 

Requisites  of  indictment  for,  389,  note. 
Indictments : 

Burning  unfinished  dwelling-house,  under   Mass.  Rev.   Sts.  ch. 
I         126,  §  5,  390. 

Setting  fire  to  a  building,  whereby  a  dwelling-house  was  burnt 
in  the  night-time.     Mass.  Stat.  1852,  ch.  258,  §  3,  391. 

Burning  a  dwelling-house  in  the  daytime.  Rev.  Sts.  of  Mass. 
ch.  126,  §  2,392. 

Setting  fire  to  a  building  adjoining  a  dwelling-house  in  the  day- 
time, whereby  a  dwelling-house  was  burnt  in  the  daytime. 
Rev.  Sts.  of  Mass.  ch.  126,  §  2,  393. 

Burning  a  stable  within  the  curtilage  of  a  dwelling-house.  Rev. 
Sts.  of  Mass.  ch.  126,  §  3,  394. 

Burning  a  city  hall  in  the  night-time.  Rev.  Sts.  of  Mass.  ch. 
126,  §  3,  395. 

Burning  a  meeting-house  in  the  daytime.  Rev.  Sts.  of  Mass. 
ch.  126,  §  4,  396. 

Burning  a  vessel  lying  within  the  body  of  the  county.  Rev. 
Sts.  of  Mass.  ch.  125,  §  5,  397. 

Burning  a  dwelling-house  with  intent  to  injure  an  insurance  com- 
pany.    Rev.  Sts.  of  Mass.  ch.  126,  §  8,  398. 

Setting  fire  to  stacks  of  hay.  Rev.  Sts.  of  Mass.  ch.  126,  §  6, 
399. 

Burning  a  dwelling-house  in  the  night-time.  Mass.  Stat.  1852, 
ch.  259,  §  3,  400. 

Burning  a  flouring  mill,  under  Ohio  statute,  401. 

Burning  a  dwelling-house,  under  Ohio  statute,  402. 

Burning  a  boat,  under  Ohio  statute,  403. 

Attempt  to  commit  arson.  Setting  fire  to  a  store,  under  Ohio 
statute,  404. 

Burning  a  stack  of  hay,  under  Ohio  statute,  405. 

Burning  a  meeting-house,  under  Vermont  statute,  406. 

Burning  one's  own  house,  with  intent  to  defraud  the  insurers,  407. 

Burning  a  barrack  of  hay,  under  Peimsylvania  statute,  408. 

Burning  stable,  under  same,  409. 

669 


INDEX. 

ASSAULTS. 

General  form  of  indictment,  213. 
Requisites  of  indictment  for,  213,  note- 
Common  assaults,  213,  note. 
Cases  where  battery  is  no  offence,  213,  note. 
Indictments : 

Assault  without  battery,  214. 

Assault  and  battery.     Massachusetts  form,  215. 

Information  in  Connecticut  for  assault  and  battery  and  breach  of 

the  peace,  with  commencement  and  conclusion,  216. 
Assault  and  battery  in  New  York,  with  commencement  and  con- 
clusion, 217. 
Assault  and  battery  in  New  Jersey,  with  commencement   and 

conclusion,  218. 
Assault  and  battery  in  Pennsylvania,  with  commencement  and 

conclusion,  219. 
Threatening  in  a  menacing  manner,  under  Ohio  statute,  220. 
Assault  and  encouraging  a  dog  to  bite,  221. 
Assault  and  tearing  prosecutor's  hair,  222. 
Assaulting  the  driver  of  a  chaise,  and  overturning   the   chaise 

with  the  wheel  of  a  cart,  223. 
Assault  and  beating  out  an  eye,  224. 
Assault  and  riding  over  a  person  with  a  horse,  225. 
Assaults  on  a  pregnant  woman,  204,  226. 
Assault  by  administering  cantharides  to  prosecutor,  227. 
Assault  with  intent  to  kill  an  infirm  person,  by  throwing  him  on 

the  ground  and  beating  him,  228. 
For  throwing  corrosive  fluid,  with  intent,  &c.,  229. 
Assault  with  beating  and  wounding  on  the  high  seas,  231. 
Assault  on  high  seas,  by  binding  the  prosecutor  and  forcing  an 

iron  bolt  down  his  throat,  232. 
Stabbing  with  intent  to  wound,  under  Ohio   Stat,  p.  49,   §    6, 

233. 
Shooting  with  intent  to  wound,  under  Ohio  Stat.  p.  49,  §  6,  234. 
Assault  on  high  seas,  with  dangerous  weapon,  235. 
Another  form  for  same,  236. 

Same  in  a  foreign  port,  the  weapon  being  a  Spanish  knife,  237. 
Second  count,  same  as  first,  charging  the  instrument  differ- 
ently, 238. 
Third  count.     Assault  with  intent  to  kill,  239. 
Assault  and  fixlse  imprisonment  at  common  law,  240. 
570 


INDEX. 

ASSAULTS.  —  Continued. 

Assault  and  false  imprisonment,  with  the  obtaining  of  five  dol- 
lars, 241. 

Assault  with  intent  to  murder  at  common  law,  242.     See  1046. 

Assault  with  intent  to  drown,  244. 

Assault  with  intent  to  murder  under  the  New  York  Eev.  Sts.  245. 
Second  count.     With  intent  to  maim,  24G. 

Assault  with  intent  to  commit  a  felony  generally,  247. 

Felonious  assault,  under  the  Massachusetts  statute,  248. 

Assault  with  intent  to  murder  in  South  Carolina,  249. 

Felonious  assault  with  intent  to  rob,  being  armed.  Rev.  Sts.  of 
Mass.  ch.  125,  §  14,  250. 

Assault  with  intent  to  rob,  against  two,  251. 

Another  form  for  same,  252. 

Assault  with  intent  to  ravish,  253. 

Same,  under  Rev.  Sts.  of  Mass.  ch.  125,  §  19,  254. 

Assault  with  intent  to  rape,  under  Ohio.  Stat,  p.  48,  §  4,  255. 

Another  form  for  assault  with  intent  to  ravish,  256. 

Same  against  two,  257. 

Indecent  assault,  259. 

Indecent  assault,  with  intent  to  have  an  improper  connection, 
260. 

Indecent  assault  by  stripping,  261. 

Assault  with  intent  to  rape.  Attempting  to  abuse  a  female 
under  ten  years  of  age,  under  Ohio  Stat.  p.  48,  §  4,  262. 

Assault  with  intent  to  steal,  263. 

BAIL, 

false  representation  of  indictment  for,  506. 
BANK  NOTES, 

forgery  of,  295,  et  seq. 
Larceny  of,  428,  et  seq. 
Indictments : 

Passing  when  sham,  as  a  cheat  at  common  law,  503. 
Passing  when  sham  on  false  pretences,  536. 
BASTARD  CHILD, 

birth  of  in  secret,  and  murder  by  choking,  indictment  for,  157. 
Birth  of  in  secret,  and   murder   by  throwing    in    privy,  indict- 
ment for,  158. 
Birth  of  in  secret,  and  murder  by  strangling  in  linen  cloth,  159. 
Birth  of  in  secret,  and  murder  by  strangling,  in  Pennsylvania, 
160. 

571 


INDEX. 

BASTARD  CHILD.  —  Continued. 

Concealing  death  of  by  throwing  in  well,  indictment  for,  183. 
Same,  not  stating  means  of  concealment,  indictment  for,  184. 
Same  under  English  statute,  185. 
BITING  OFF  THE  EAR, 

indictment  for,  196. 
BREAKING  INTO  HOUSE.  (See  Burglary,  Larceny.) 

Indictments : 

Into  house  and  frightening  pregnant  woman,  485. 
Into  close  and  cutting  down  tree,  476, 
Into  close  and  pulling  down  fence,  480. 
BUGGERY,  (See  Sodomy.) 

BURGLARY, 

general  frame  of  indictment  for  (with  larceny),  at  common  law, 

367. 
Requisites  of  indictment,  367. 
Indictments : 

Burglary  and  larceny  at  common  law.     Another  form,  368. 

Second  count.     Receiving  stolen  goods,  369. 
Burglary  at  common  law  with  no  larceny,  370. 
Breaking  into  dwelling-house,  not  being  armed,  with  intent  to 

commit  larceny,  under  Massachusetts  statute,  371. 
General  frame  of  indictment  in  New  York,  372. 
Burglary,  by  breaking  out  of  a  house,  373. 
Burglary  and  larceny  and  assault,  with  intent  to  murder,  374. 
Burglary,  with  violence,  375. 
Burglary  and  rape,  376. 
Burglary,  with  intent  to  ravish :  with  a  count  for  burglary  with- 

violence,  under  St.  7  Wm.  4  and  1  Vict.  c.  86,  s.  2,  377. 
Burglary  and  larceny,  at  common  law,  by  breaking  into  a  parish 

church,  378. 
Burglary  and  larceny.     Breaking  and  entering  a  store  and  steal- 
ing goods,  under  Ohio  statute,  379. 
Burglary  and  larceny.     Breaking  and  entering  a  meeting-house, 
and  stealing  a  communion  cup  and  chalice,  under  Ohio  statute, 
380. 
Burglary.     Breaking  and  entering  a  storehouse  with   intent  to 

steal,  under  Ohio  statute,  381. 
Burglary.     Breaking  and  entering  a  shop  with  intent  to  steal, 

under  Ohio  statute,  382. 
Burglary.     Breaking  and  entering  a  dwelling-house  with  intent 
to  steal,  under  Ohio  statute,  383. 
672 


INDEX. 

BURGLARY,  —  Continued. 

Breaking  and  entering  a  mansion-house  in  the  daytime,  and  at- 
tempting to  commit  personal  violence,  under  Ohio  statute,  384. 

Breaking  and  entering  a  mansion-house  in  the  night  season,  and 
committing  personal  violence,  under  Ohio  statute,  385. 

Against  a  person  for  attempting  to  break  and  enter  a  dwelling- 
house  at  night,  at  common  law,  386. 

Breaking  a  storehouse  with  intent  to  enter  and  steal,  at  common 
law,  387. 

Being  found  by  night  armed,  with  inteut  to  break  into  a  dwell- 
ing-house, and  commit  a  felony  therein,  388. 
BURNING,  ETC.  (See  Arson.) 

CAPTION, 

general  form  of,  1. 
Requisites  of,  1,  et  seq. 
Precedent  of  in  U.  S.  courts,  1. 
In  New  Jersey,  1. 
In  New  York,  1. 
In  Vermont,  1. 
CHEATS, 

at  common  law  generally,  499. 
Indictments  : 

Selling  by  false  weight  or  measure,  499. 

Against  a  baker  for  selling  to  poor  persons  loaves  under  weight, 
and  obtaining  pay  from  them,  under  the  pretence  that  they 
were  of  full  weight,  500. 
Cheating  at  common  law  by  false  cards,  501. 

Second  count.     Cheating  at  common  law,  at  a  game  of  dice 
called  "  passage,"  502. 
Information.    Passing  a  sham  bank  note,  the  otFence  being  charged 

as  a  false  token,  503. 
Obtaining  goods  by  means  of  a  sham  bank  note,  as  a  misdemeanor 

at  common  law,  504. 
Cheat  by  means  of  a  counterfeit  letter,  505. 
(See  Secreting  Goods,   etc..  False  Personation,  Fraud- 
ulent Insolvency,  Factors,  False  Pretences.) 
COINING.  (See  Forgery.) 

COIN  OF  THE  UNITED  STATES, 

debasing  and  diminishing,  indictments  for,  336,  «Scc. 
COMMENCEMENTS  AND  CONCLUSIONS,  3,  &c. 

573 


INDEX. 

CONCEALING  DEATH  OF  BASTARD  CHILD. 

(See  Bastard  Child.) 
CONNECTICUT, 

commencement  and  conclusion  of  indictment   and   information 

in,  31. 
Information  in,  for  assault  and  battery  and  breach  of  peace,  216. 
Larceny  of  bank  note  in,  431. 

CONVEYANCES, 

fraudulent,  507,  508-518. 
COUNTERFEIT   LETTER, 

cheating  by  means  of,  indictment  for,  505. 
COUNTERFEITING.  (See  Forgery.) 

COUNTS, 

how  far  several  may  be  joined,  2,  note. 
COVENTRY  ACT, 

indictment  under,  192. 
CREDITORS, 

secreting  goods  with  intent  to  defraud,  507,  &c. 
CRUELTY, 

killing  apprentice  by,  161. 

DEBASING  UNITED  STATES  COIN, 

by  officer  employed  in  mint,  348. 
DEFENDANT'S  NAME, 

how  to  be  pleaded,  2,  note. 

How  error  in  pleading  to  be  excepted  to,  2,  note. 
(See  Abatement.) 
DEFENDANTS, 

when  several  may  be  joined,  2,  note. 
DELAWARE, 

commencement  and  conclusion  of  indictment  in,  47,  48,  49. 
DESTROYING  A  VESSEL  AT  SEA, 

with  intent  to  defraud  underwriters,  indictment  for,  575. 
DETAINER.  (See  Forcible  Entry.) 

DUEL.  (See  Challenge.) 

ELIZABETH, 

statute  of,  attempts  to  evade,  518. 
EMBEZZLEMENT, 

nature  of  offence,  460. 
674 


INDEX. 

EMBEZZLEMENT.  —  Continued. 
Indictments : 

against  the  president  and  cashier  of  a  bank  for  an  embezzle- 
ment.    Rev.  Sts.  of  Mass.  eh.  126,  §  17,  4G6. 
Against  a  clerk  for  embezzlement.     Rev.  Sts.  of  Mass.  ch.  126 

§  29,  467. 
Against  a  carrier  for  embezzlement.     Rev.  Sts.  of  Mass.  ch.  126 

§  30,  468. 
Embezzlement  by  clerk  or  servant,  in  England,  469. 
Against  officer  of  the  United  States  Mint  for  embezzling  money 

intrusted  to  him,  460. 
Against  same  person  for  same,  charging  him  with  being  a  person 

employed  at  the  mint,  461. 
Against  auctioneer  for  embezzlement,  under  the  Mass.  Rev.  Sts. 
ch.  126,  §  30,  462. 

Second  count,  larceny,  463. 
General  form  of  indictment  in  New  York,  464. 
Second  count,  larceny,  465. 

(See  Factor,  Fraudulent  Insolvency.) 
ENDEAVOR  TO  CONCEAL  BIRTH  OF  BASTARD  CHILD, 
indictment  for,  185. 

(See  Bastard  Child.) 
ENDEAVORING  TO  COMMIT  OFFENCE, 

(See  Attempts.) 
ENTRY, 

forcible.  (See  Forcible  Entry.) 

FACTOR, 

indictment  for  pledging  goods  consigned  to  him,  «fec.,  525. 

Selling  same  and  applying  proceeds  to  his  own  use,  526. 
FALSE  CARDS, 

indictment  for  cheating  by,  501. 
FALSE  IMPRISONMENT, 

indictment  against,  at  common  law,  240. 

Same  coupled  with  extortion,  241. 
FALSE  PERSONATION  OF  BAIL, 

indictment  for,  506. 
FALSE  PRETENCES, 

obtaining  goods  by,  general  frame  of  indictment  for,  528. 

General  character  of  offence,  528,  note. 

Requisites  of  indictment,  528,  note. 

575 


INDEX. 

FALSE  PRETENCES.  —  Continued. 

Indictments : 

General  frame  of  indictment,  528. 

Form  used  in  Massacliusetts,  529. 

Same  in  New  York,  530. 

Pretence  that  defendant  was  agent  of  a  lottery,  &c.,  531. 

Obtaining  money  by  personating  another,  532. 

Pretence  that  defendant  was  M.  H.,  who  had  cured  Mrs.  C.  at  the 
Oxford  Infirmary,  whereby  he  induced  the  prosecutor  to  buy  a 
bottle  of  ointment,  &c.,  for  which  he  received  a  sovereign,  giv- 
ing 15*.  in  change,  533. 

At^ainst  a  member  of  a  benefit  club  or  society,  for  obtaining 
money  belonging  to  the  rest  of  the  members  under  false  pre- 
tences, 534. 

Another  form  for  same,  coupled  with  a  production  to  the  society 
of  a  false  certificate  of  burial,  535. 

First  count.     Pretence  that  a  broken  bank  note  was  good, 
536. 

Pretence  that  a  flash  note  was  good,  537. 

Pretence  that  a  worthless  check  or  order  was  good,  538. 

Another  form  for  same,  539. 

Obtaining  goods  by  check  on  a  bank  where  the  defendant  had 
no  effects,  540. 

Pretence  that  defendant  was  the  agent  of  A.  B.,  and  as  such  had 
been  sent  by  A.  B.  to  C.  D.,  to  receive  certain  money  due  from 
the  latter  to  the  former,  541. 

Pretence  that  defendant  was  broker  for  unknown  principals,  541|-. 

Pretending  to  be  clerk  of  a  steamboat,  and  authorized  to  collect 
money  for  the  boat,  542. 

Pretence  made  to  a  tradesman  that  defendant  was  a  servant  to  a 
customer,  and  was  sent  for  the  particular  goods  obtained,  543. 

Another  form  for  same,  544. 

Pretence  that  defendant  was  asked  by  a  person  "  living  in  a  large 
house  down  the  street,"  to  buy  carpet  of  prosecutor,  544^. 

Pretence  that  the  defendant  was  entitled  to  grant  a  lease  of  cer- 
tain freehold  property,  545. 

Pretence  that  the  defendant  was  authorized  agent  of  the  Execu- 
tive Committee  of  the  Exhibition  of  the  Works  of  Industry  of 
all  Nations,  and  that  he  had  power  to  allot  space  to  private  in- 
dividuals for  the  exhibition  of  their  merchandise,  546. 

Pretence  that  prisoner  was  an  unmarried  man,  and  that  having 
been  engaged  to  the  prosecutrix,  and  the  engagement  broken 
576 


INDEX. 

FALSE    PRETENCES.— Con^mwerf. 

off,  he  was  entitled  to  support  an  action  of  breach  of  promise 
against  her,  by  which  means  he  obtained  money  from  her,  547. 

Pretence  that  defendants  were  the  agents  of  P.  N.,  who  was  the 
owner  of  certain  stock  and  land,  &c.,  the  latter  of  which  was 
in  fact  mortgaged,  548. 

Pretences  that  defendant  possessed  a  capital  of  eight  thousand 
dollars,  which  had  come  to  him  through  his  wife,  it  being  her 
estate,  and  that  a  part  of  it  had  already  come  into  his  posses- 
sion, and  a  part  would  come  into  his  possession  in  the  month 
then  next  ensuing,  &c.,  549. 

Second  count.    That  defendant  had  a  capital  of  $8,000,  which 

came  through  his  wife,  550. 
Third  count.     That  defendant  had  a  capital  of  $8,000,  551. 

Pretence  that  defendant  was  well  off  and  free  from  debt,  &c.,  552. 
Second  count.     Setting  forth  the  pretence  more  fully,  553. 

Pretence  that  certain  property  of  the  defendant  was  unincum- 
bered, and  that  he  himself  was  free  from  debts  and  liabilities, 
554. 

Pretence  that  certain  goods  were  unincumbered,  554|^. 

Pretence  that  defendant  had  then  purchased  certain  property, 
which  it  was  necessary  he  should  immediately  pay  for,  555. 

Pretence  that  a  certain  draft  for  $7,700,  drawn  by  a  house  in 
Charleston  on  a  house  in  Boston,  which  the  defendant  ex- 
hibited to  the  prosecutor,  had  been  protested  for  non-payment ; 
that  the  defendant  had  had  his  pocket  cut,  and  his  pocket-book, 
containing  $195,  stolen  from  it;  that  a  draft  drawn  by  a  per- 
son in  Philadelphia,  which  the  defendant  showed  the  prosecu- 
tor, had  been  received  by  the  defendant  in  exchange  for  the 
protested  draft,  and  that  the  defendant  expected  to  receive  the 
money  on  the  last-mentioned  draft,  556. 

Pretence  that  a  certain  watch  sold  by  defendant  to  the  prosecutor 
was  gold,  557. 

Obtaining  money  by  means  of  a  false  warranty  of  the  weight  of 
goods,  558. 

Obtaining  money  by  a  false  warranty  of  goods,  559. 

Falsely  pretending  that  goods  were  of  a  particular  quality,  560. 

Pretence  that  a  certain  horse  to  be  sold,  &c.,  was  sound,  and  was 
the  horse  called  "  Charley,"  561. 

Pretence  that  a  horse  and  phaeton  were  the  property  of  a  lady 
then   shortly  before  deceased,  and  that  the  horse  was   kind, 
&c.,  562. 
VOL.  I.—  37  5Y7 


INDEX. 

FALSE    PRETENCES.  —  Continued. 

Second  count.     Like  the  first,  except  that  the  offering  for 

sale  was  alleged  to  have  been  by  T.  K.  the  elder,  only,  563. 

Other  pretence  as  to  the  value  and  history  of  a  horse,  which  the 

prisoner  sold  to  the  prosecutor,  564. 
Pretence  that  one  J.  P.,  of  the  City  of  Washington,  wanted  to  buy 
some  brandy,  &c. ;  that  said  J.  P.  kept  a  large  hotel  at  Wash- 
ington, (Sec. ;  that  defendant  was  sent  by  said  J.  P.  to  purchase 
brandy  as  aforesaid,  and  that  defendant  would  pay  cash  there- 
for, if  prosecutor  would  sell  him  the  same.     First  count,  565. 
Second  count.     That  defendant  was  requested  by  one  J.  P.^ 
who  kept  a  large  hotel  in  Washington  City,  to  purchase 
some  brandy  for  said  J.  P.,  and  that  if  prosecutor  would 
sell  defendant  two  half  pipes  of  brandy,  defendant  would 
pay  prosecutor  cash  for  the  same  shortly  after  delivery, 
566. 
Third  coimt.     That  defendant  had  been  requested  by  one 
J.  P.  to  purchase  for  him  some  brandy,  and  that  he  (the 
said  J.  P.)  kept  a  large  hotel  in  Baltimore,  &c.,  567. 
Pretence  that  one  of  the  defendants  having  advanced  money  to 
the  other  on  a  deposit  of  certain  title  deeds,  had  himself  depos- 
ited the  deeds  with  a  friend,  and  that  he  received  a  sum  of 
money  to  redeem  them  ;  with  counts  for  conspiracy,  568. 
For  pretending  to  an  attesting  justice  and  a  recruiting  sergeant 
that  defendant  was  not  an  apprentice,  and  thereby  obtaining 
money  to  enlist,  569. 
For  obtaining  more  than  the  sum  due  for  carriage  of  a  parcel  by 

producing  a  liilse  ticket,  570. 
Pretence  that  the  defendant  had  no  note  protested  for  non-pay- 
ment, that  he  was  solvent,  and  worth  from  nine  to  ten  thousand 
dollars,  571. 
Obtaining  acceptances  on  drafts,  by  pretence  that  certain  goods 
had   been   purchased   by   defendant   and  were  about  to    be 
shipped  to  prosecutor,  572. 
Obtaining  acceptances  by  the  pretence  that  defendant  had  cer- 
tain goods  in  storage  subject  to  prosecutor's  order,  573. 
Receiving  goods  obtained  by  false  pretences,  under  the  English 
statute,  574. 

FALSE  wl:iGriT, 

indictment  for  selling  by,  499. 
FEDERAL  COURTS.  (See  United  States  Courts.) 

578 


INDEX. 

FELONIES, 

when  joinable  with  misdemeanors,  2,  note. 
Assaults  with  intent  to  commit.  (See  Assaults.) 

FELONIOUS  ASSAULTS, 

indictment  for  in  Massachusetts,  248. 
FERRY, 

cutting  ropes  across,  indictment  for,  486. 
FIGHT, 

challenging  to.  (See  Challenging.) 

FINAL  COUNT, 

in  U.  S.  courts,  17,  18, 131,  note,  239,  note. 
(See  also  United  States.) 
FORCE  AND  ARMS, 

how  far  essential,  2,  note. 

(See  Homicide,  etc.) 
FORCIBLE  ENTRY  AND  DETAINER. 

General  frame  of  indictment  at  common  law,  489. 

Another  form  of  same,  490. 

Against  one,  &c.,  at  common  law,  with  no  averment  of  either 

leasehold  or  freehold  possession  in  the  prosecutor,  491. 
Forcible  entry,  &c.,  into  a  freehold,  on  Stat.  5  Rich.  II.  c.  8, 

492. 
Forcible  entry  into  a  leasehold,  on  Stat.  21  Jac.  I.  c.  15,  493. 
Forcible  detainer  on  Stat.  8  Hen.  VIII.  c.  9,  or  51  Jac.  I.  c.  51, 

494. 
Forcible  entry.     Form  in  use  in  Philadelphia.     First  count,  at 
common  law,  495. 

Second  count.     Entry  upon  freehold,  496. 
Third  count.     Entry  upon  leasehold,  497. 
Breaking  and  entering  a  close,  and  cutting  down  a  tree,  under 
the  Pennsylvania  act,  498. 
FORGERY, 

general  frame  of  indictment  at  common  law,  264. 
Forging,  at  common  law,  a  certificate  of   an  officer  of  the  Ameri- 
can army,  in  1777,  to  the  effect  that  he  had  received  certain 
stores,  &c.,  265. 

Second  count.  Publishing  the  same,  266. 
Forgery.  Altering  a  certificate  of  an  officer  of  the  American 
army  in  1778,  to  the  effect  that  he  had  received  for  the  use  of 
the  troops  at  Carlisle  certain  articles  of  clothing.  Offence 
laid  at  common  law,  the  intent  being  to  defraud  the  United 
States,  267. 

579 


INDEX. 

FOUGEUY.  —Continued. 

Forgery.     Altering  and  defacing  a  certain  registry  and  record 

&c.,  under  the  Pennsylvania  Act  of  1700,  268. 
For  forging,  &c.,  a  bill  of  exchange,  an  acceptance  thereto,  and 
an  indorsement  thereon,  269. 
Second  count,  for  uttering,  270. 
Third  count,  for  forging  an  acceptance,  271. 
Fourth  count,  same  stated  differently,  272. 
Fifth  count,  for  forging  an  indorsement,  &c.,  273. 
Sixth  count,  for  publishing  a  forged  indorsement,  &c.,  274. 
For  forgery  at  common  law,  in  antedating  a  mortgage  deed  with 

intent  to  take  place  of  a  prior  mortgage,  275. 
At  common  law.    Against  a  member  of  a  dissolved  firm  for  forg- 
ing the  name  of  the  firm  to  a  promissory  note,  276. 
Forging  a  letter  of  attorney,  at  common  law,  277. 
Forgery  of  bill  of  exchange.     First  count,  forging  the  bill,  278. 
Second  count.     Uttering  the  same,  279. 
Third  count.     Forging  an  acceptance  on  the  same,  280. 
Fourth  count.     Offering,  &c.,  a  forged  acceptance,  281. 
Sixth  count.     Offering,  &c.,  forged  indorsements,  282. 
Forging  and  publishing  a  receipt  for  payment  of  money,  283. 

Second  count,  for  uttering,  284. 
Forging  a  receipt,  under  the  North  Carolina  statute,  285. 
Forging  a.  fieri  facias,  at  common  law,  286. 

Second  count.     Uttering  same,  287. 
Forgery  of  a  bond,  at  common  law,  288. 

At  common  law,  by  separating  from  the  back  of  a  note  an  indorse- 
ment of  part  payment,  289, 
Forgery  in  altering  a  peddler's  license,  at  common  law,  290. 
Forgery  of  a   note  which  cannot  be   particularly  described   in 

consequence  of  its  being  destroyed,  291. 
Forgery  of  a  note  whose  tenor  cannot  be  set  out  on  account  of 

its  being  in  defendant's  possession,  292. 
Forgery  of  bond  when  forged  instrument  is  in  defendant's  pos- 
session, 293. 
Forgery  at  common  law,  in  passing  counterfeit  bank  notes,  294. 
Forgery  of  the  note  of  a  foreign  bank,  as  a  misdemeanor  at  com- 
mon law,  295. 
Forging  a  bank  note,   and   uttering  the  same,  under  English 
statute,  296. 

Second  count.     Putting  away  same,  297. 
Third  coimt.     Forging  promissory  note,  298. 
580 


INDEX. 

FOUGFjUY.— Continued. 

Fourth  count.     Putting  away  same,  299. 

Fifth   count.     Same  as  first,  with  intent   to  defraud  J.  S., 

300. 
Sixth  count.     Putting  away  same,  301. 
Seventh  count.     Same  as  second,  with  intent  to  defraud  J. 

S.,  302. 
Eightli  count.     Putting  away  same,  303. 
Attempt  to  pass  counterfeit  banli  note,  under  Ohio  statute,  304. 
Forging  a  certificate  granted  by  a  collector  of  the  customs,  305. 
Causing  and  procuring  forgery,  &c.,  306. 
Altering  generally,  307. 

Altering,  &c.,  averring  specially  the  alterations,  308. 
Same  in  another  shape,  309. 
Uttering  certificate  as  forged,  310. 
Uttering  certificate  as  altered,  311. 
Forging  a  treasury  note,  312. 
Causing  and  procuring,  &c.,  313. 
Altering  same,  314. 
Passing  note,  &c.,  315. 
Same  in  another  shape,  316. 
Feloniously  altering  a  bank  note,  317. 
Having  in  possession  forged  bank  notes  without  lawful  excuse, 

knowing  the  same  to  be  forged,  318. 
Uttering  and  passing  a  counterfeit  bank  bill,  under  §  4,  ch.  96  of 

Revised  Sts.  of  Vermont,  319. 
Uttering  forged  order,  under  Ohio  statute,  320. 
Another  form  for  same,  321. 
Uttering   a  forged  note  purporting  to  be  issued  by  a  bank   in 

another  State,  under  the  Vermont  statute,  322. 
Having  counterfeit  bank  note  in  possession,  under  Ohio  statute, 

323. 
Having   in   possession    counterfeit   plates,   under   Ohio   statute, 

324. 
Secretly  keeping   counterfeiting  instruments,  under    Ohio  stat- 
ute, 325. 
Having  in  possession  counterfeit  bank  notes,  under  Ohio  stat- 
ute, 326. 
Having  in  possession  forged  note  of  United  States  Bank,  under 

the  Vermont  statute,  327. 
Forgery,  &c.,  in   New  York.     Having   in   possession   a   forged 
note  of  a  corporation,  328. 

581 


INDEX. 

FORGERY.  —  Co7itinued. 

Second  count,     Uttering  the  same,  329. 
Forging  an  instrument  for  payment  of  money,  under  the  New 
York  statute,  330. 

Second  count.     Uttering  the  same,  331. 
Having  in  possession  forged  notes,  &c-,  with  intent  to  defraud, 

under  the  New  York  statute,  332. 
Forgery  of  a  note  of  a  bank  incorporated  in  Pennsylvania,  under 
the  Pennsylvania  statute,  333. 

Second  count.     Passing  same,  334. 
Forgery  of  the  note  of  a  bank  in  another  State,  under  the  Vir- 
ginia statute,  335. 
For   making,   forging,  and   counterfeiting,  &c.,  American   coin, 
under  act  of  Congress,  336. 

Second  count.     Same,  averring  time  of  coining,  337. 
Third  count.     Passing,  &c.,  338. 
Fourth  count.     Same  in  another  shape,  339. 
Fifth  count     Same,  specifying  party  to  be  defrauded,  340. 
Counterfeiting  half  dollars,  under  act  of  Congress,  341. 
Passing  counterfeit  half  dollars,  with  intent  to  defraud  an  un- 
known person,  under  the  act  of  Congress,  342. 

Second  count.     Same,  with  intent  to  defraud  R.  K.,  343. 
Having  coining  tools  in  possession,  at  common  law,  344. 
Making,  forging,  and  counterfeiting,  &c.,   foreign  coin,  quarter 
dollar,  under  act  of  Congress,  345. 

Second  count.     Procuring  forgery,  346. 
Passing,  uttering,  and  publishing  counterfeit  coin  of  a  foreign 
country,   under  act  of  Congress,  specifying  party  to   be    de- 
frauded, 347. 
Debasing  the  coin  of  the  United  States,  by  an  officer  employed 

at  the  mint,  under  act  of  Congress,  348. 
Fraudulently  diminishing  the  coin  of  the  United  States,  under 

act  of  Congress,  349. 
Uttering  a  counterfeit  half  guinea,  at  common  law,  350. 
Passing  counterfeit  coin  similar  to  a  French  coin,  at  common  law, 

351. 
Counterfeiting  United  States  coin,  under   the  Vermont  statute, 

352. 
Having  in  possession  coining  instruments,  under  the  Rev.  Sts. 

of  Massachusetts,  ch.  127,  §  18,353. 
Having  in  possession  ten  counterfeit  pieces  of  coin,  with  intent 
to  pass  the  same,  under  Rev.  Sts.  of  Mass.  ch.  127,  §  15,  354. 
582 


INDEX. 

FORGEUY.  —Co7itinued. 

Having  in  custody  less  than  ten  counterfeit  pieces  of  coin,  under 

Rev.  Sts.  of  Mass.  ch.  127,  §  16,  355. 
Uttering  and  publishing  as  true  a  forged  promissory  note.     Rev. 

Sts.  of  Mass.  ch.  127,  §  2,  356. 
For  forging  a  promissory  note.     Rev.  Sts.  of  Mass.  ch.  127,  §  1, 

357. 
For  counterfeiting  a  bank  bill.     Rev.  Sts.  of  Mass.  ch.  127,  §  4, 

358. 
For  having  in  possession  at  the  same  time,  ten  or  more  counter- 
feit bank  bills,  with  intent  to  utter  and  pass  the  same  as  true. 

Rev.  Sts.  of  Mass.  ch.  127,  §  5,  359. 
Passing  a  counterfeit  bank  bill.    Rev.  Sts.  of  Mass.  ch.  127,  §  6, 

360. 
Having  in  possession  a  counterfeit  bank  bill,  with  intent  to  pass 

the  same.     Rev.  Sts.  of  Mass.  ch.  127,  §  8,  361. 
Making  a  tool  to  be  used  in  counterfeiting  bank  notes.     Rev. 

Sts.  of  Mass.  ch.  127,  §  9,  362. 
Having  in  possession  a  tool  to  be  used  in  counterfeiting  bank 

notes,  with  intent  to  use  the  same.     Rev.  Sts.  of  Mass.  ch. 

127,  §  9,  363. 
Counterfeiting  current  coin.     Rev.  Sts.  of  Mass.  ch.  127,  §  15, 

364. 
Uttering  and  passing  counterfeit  coin.     Rev.  Sts.  of  Mass.  ch. 

127,  §16,  365. 
Coining,  &c.,  under  the  North  Carolina  statute,  366. 
FRAUDULENT   CONVEYANCES, 
under  statute  of  Elizabeth,  518. 
FRAUDULENT  INSOLVENCY, 

in  Pennsylvania,  indictment  for,  519. 
General  form,  519. 

Averring  collusion  with  another  person,  520. 
Same,  averring  collusion  with  another  person,  521. 
Same,  specifying  another  assignee,  522. 

Insolvency  by  a  tax  collector.     First  count.     Embezzling  cred- 
itor's property,  523. 

Second  count.     Applying  to  his  own  use  trust  money,  &c., 
524. 
FRAUDULENT   SALES.  (See  Secketing  Goods.) 

GEORGIA, 

commencement  and  conclusion  of  indictment  in,  62. 

683 


INDEX. 

GOODS, 

description  of,  415. 
GUILTY  INTENT, 

how  to  be  set  forth,  2,  note. 
GUILTY,   PLEA  OF.  (See  Pleas.) 

HOMICIDE, 

general  form  of  indictment,  114. 

By  shooting  with  a  pistol,  115. 

By  cutting  the  throat,  116.  # 

Against  principal  in  the  first  and  in  the  second  degree,  for  shooting 

with  a  pistol,  117. 
Against  principal  in  the  first  and  principal  in  the  second  degree. 
Hanging,  118. 

Second  count.     Against  same.     Beating  and  hanging,  119. 
Striking  with  a  poker,  120. 
Riding  over  with  a  horse,  121. 
Drowning,  122. 
Strangling,  123. 

Second  count.     By  strangling  and  stabbing,  with  unknown 
persons,  124. 
Poisoning  with  arsenic,  125. 
Burning  a  house  where  the  deceased  was  at  the  time,  126. 

Second  count.     Averring  a  preconceived  intention  to   kill, 

127. 
First  count,  by  choking,  against  two  —  one  as  principal  in 
the  first  degree,  and  the  other  in  the  second  degree,  128. 
Second   count,  by  choking   and   beating.      Against   two  — 
one  as  principal  in  the  first  degree,  the  other  in   second 
degree,  129. 
Poisoning.     First  count,  with  arsenic  in  chicken  soup,  130. 

Second  count.     Against  one  defendant  as  principal  in  the 
first,  and  the  other  as  principal  in  the  second  degree,  131. 
Third  count.     Against   one  as  principal  and  the   other  as 
accessary  before  the  fact,  132. 
Placing  poison  so  as  to  be  mistaken  for  medicine,  133. 
Of  a  child  by  poison,  134, 
By  mixing  white  arsenic  witli  wine,  and  sending  it  to  deceased, 

&c.,  135. 
By  poisoning.     First  count,  mixing  white  arsenic  in  chocolate, 
136. 

Second  count.     Mixing  arsenic  in  tea,  137. 
584 


INDEX. 

HOMICIDE.  —Continued. 

By  giving  to  the  deceased  poison,  and  thereby  aiding  her  in  sui- 
cide, 138. 

In  the  first  degree  in  Ohio.  By  obstructing  a  railroad  track, 
139. 

In  the  first  degree  in  Ohio.  By  sending  to  tlie  deceased  a  box 
containing  an  iron  tube,  gunpowder,  bullets,  &c.,  artfully  ar- 
ranged so  as  to  explode  on  attempting  to  open  it,  140. 

In  the  first  degree  in  Ohio.  By  a  father,  chaining  and  confining 
his  infant  daughter  several  nights  during  cold  weather  without 
clothing  or  fire,  141. 

Second  count.     Not  alleging  a  chaining,  142. 

By  forcing  a  sick  person  into  the  street,  143. 

By  stabbing,  under  Ohio  statute,  143^. 

Of  an  infant  by  suffocation,  1 44. 

Stamping,  beating,  and  kicking,  145. 

Beating  with  fists  and  kicking  on  the  ground,  no  mortal  wound 
being  discovered,  146. 

For  stabbing,  casting  into  the  sea,  and  drowning  the  deceased 
on  the  high  sea,  &.C.,  147. 

Knocking  to  the  ground,  and  beating,  kicking,  and  wounding, 
148. 

Striking  with  stones,  149. 

Casting  a  stone,  150. 

Striking  with  a  stone,  151. 

By  striking  with  an  axe  on  the  neck,  152. 

By  striking  with  a  knife  on  the  hip,  the  death  occurring  in  an- 
other state,  153. 

Stabbing  with  a  knife,  155. 

Against  J.  T.  for  shooting  the  deceased,  and  against  A.  S.  for 
aiding  and  abetting,  156. 

Of  a  bastard  child,  157. 

Throwing  a  bastard  child  in  a  privy,  158. 

Smothering  a  bastard  child  in  a  linen  cloth,  159. 

In  Pennsylvania,  of  a  bastard  child  by  strangling,  160. 

Starving  apprentice,  161. 

Manslaughter  by  neglect.  First  count,  that  the  deceased  was  the 
apprentice  of  the  prisoner,  and  died  from  neglect  in  prisoner 
to  supply  him  with  food,  &c.,  162. 

Second  count,  charging  killing  by  overwork  and  beating,  163. 

Manslaughter.  Against  a  woman  for  exposing  her  infant  child 
so  as  to  produce  death,  164. 

585 


INDEX. 

HOMICIDE.  —  Continued. 

Manslaughter.  By  forcing  an  aged  woman  out  of  her  house 
in    the  night,  clucking,  tarring,  feathering,  and  whipping  her, 

Against  the  keeper  of  an  asylum  for  pauper  children,  for  not 
supplying  one  of  them  with  proper  food  and  lodging,  whereby 
tie  child  died,  166. 

Manslaughter,  by  striking  with  stone,  167. 

Manslaughter.  By  giving  to  the  deceased  large  quantities  of 
spirituous  liquors,  of  which  he  died,  168. 

Against  driver  of  a  cart  for  driving  over  deceased,  169. 

Manslaughter.  Against  a  husband  for  neglecting  to  provide 
shelter  for  his  wife,  170. 

In  a  duel  fought  without  the  State.  Rev.  Sts.  of  Mass.  eh.  125, 
§  3,  171. 

Manslaughter  in  second  degree  against  captain  and  engineer  of 
a  steamboat,  under  New  York  Rev.  Sts.  p.  531,  §  46,  172. 

Against  the  engineer  of  a  steamboat,  for  so  negligently  managing 
the  engine  that  the  boiler  burst  and  thereby  caused  the  death 
of  a  passenger,  173. 

Against  agent  of  company  for  neglecting  to  give  a  proper  signal 
to  denote  the  obstruction  of  a  line  of  railway,  whereby  a  col- 
lision took  place  and  a  passenger  was  killed,  174. 

Against  the  driver  and  stoker  of  a  railway  engine,  for  negligently 
driving  against  another  engine,  whereby  the  deceased  met  his 
death,  175. 

Involuntary  manslaughter  in  Pennsylvania,  by  striking  an  infant 
with  a  dray,  176. 

On  the  high  seas.  General  form  as  used  in  the  United  States 
Courts,  177. 

On  the  high  seas,  by  striking  with  a  handspike.  Adapted  to 
T'nited  States  Courts,  178. 

Striking  with  a  glass  bottle,  on  the  forehead,  on  board  an  Amer- 
ican vessel  in  a  foreign  jurisdiction.  Adapted  to  United  States 
Courts,  179. 

Against  a  mother  for  drowning  her  child,  by  throwing  it  from  a 
steamboat  on  Long  Island  Sound,  180. 

Second   count.      Omitting   averment   of    relationship,    and 
charging  the  sex  to  be  unknown,  180. 

On  the  high  seas,  with  a  hatchet,  181. 

Manslaughter  on  the  high  seas,  182. 
586 


INDEX. 

HOMICIDE.  —  Continued. 

Second  count.     Same  on  a  long-boat  belonging  to  J.  P.  V., 
&c.,  182. 
Misdemeanor  in  concealing  death  of  bastard  child  by  casting  it  in 

a  well,  under  the  Pennsylvania  statute,  183. 
Same,  where  means  of  concealment  are  not  stated,  184. 
Endeavor  to  conceal  the  birth  of  a  dead  child,  under  the  English 
statute,  185. 

ILLINOIS, 

commencement  and  conclusion  of  indictments  in,  82. 
INDIANA, 

commencement  and  conclusion  of  indictment,  in,  79. 

Administering  medicine  with  intent  to  produce  abortion,  211. 
INDICTMENT, 

general  frame  of,  at  common  law,  2. 

Requisites  of,  2,  note. 

Name  of  defendant  in,  2,  note. 

Number  of  defendants,  2,  note. 

Addition  of  defendant,  2,  note. 

Mystery  of  defendant,  2,  note. 

Residence  of  defendant,  2,  note. 

Time,  2,  note. 

Place,  2,  note. 

Name  of  prosecutor,  2,  note. 

Intent,  2,  note,  264,  note. 

Conclusion,  2,  note. 

Joinders  of  several  counts,  2,  note. 
INFORMATION, 

form  of,  in  Connecticut,  33. 

In  Louisiana,  71. 
INSOLVENCY, 

fraudulent,,  in  Pennsylvania,  519. 
INSTRUMENT  OF  WRITING, 

how  to  be  set  forth,  264. 
INSURERS, 

destroying  vessel  at  sea,  with  intent  to  defraud,  &c.,  575. 
INTENT  TO  COMMIT  OFFENCES. 

(See  Assaults  with  Intent.) 
INTENT  TO  CHEAT, 

how  to  be  averred  in  indictment,  2,  note,  264,  note. 

Generally,  how  to  be  averred,  2,  note. 

687 


INDEX. 

INVOLUNTARY  MANSLAUGHTER, 
in  Pennsylvania,  indictment  for,  176. 

JOINDER, 

of  defendant!*,  2,  note. 
Of  offences,  2,  note. 
JURISDICTION  OF  U.  S.  COURTS, 
how  averred,  17,  18. 
Plea,  &c.  (See  Plea.) 

KENTUCKY, 

commencement  and  conclusion  of  indictment  in,  85. 

LANDMARKS, 

indictment  for  removing,  482. 
LARCENY, 

general  frame  of  indictment  at  common  law,  415. 

Stealing  the  property  of  different  persons,  416. 

At  a  navy  yard  of  the  United  States,  417. 

On  the  high  seas,  418. 

On  the  high  seas.     Another  form,  419. 

In  an  American  ship  at  the  Bahama  Islands,  420. 

Second  count.     Receiving,  &c.,  421. 
Form  in  use  in  New  York,  422. 
Same  in  Pennsylvania,  423. 

Second  count.     Receiving  stolen  goods,  424. 
Same  in  New  Jersey,  425. 
Same  in  South  Carolina,  426. 
Same  in  Michigan,  427. 
Bank  note  in  North  Carolina,  428. 
Bank  note  in  Pennsylvania,  429. 
Bank  note  in  Connecticut,  430. 
Bank  note  in  Tennessee,  431. 
Bank  notes  of  unknown  bank,  431^. 

In  dwelling-house  in  daytime.     Mass.  Rev.  Sts.  ch.  126,  §  14,  432. 
Breaking  and  entering  a  vessel  in  the  night-time,  and  committing 

a  larceny  therein,  under  Mass.  Rev.  Sts.  ch.  126,  §  11,  433. 
Breaking  and  entering  a  shop  in  the  night,  and  committing  a 

larceny  therein,  under  Mass.  Rev.  Sts.  ch.  126,  §  11,  434. 
By  the  cashier  of  a  bank.     Mass.  Stat.  1847,  ch.  171,  §  1,  435. 
Breaking  and  entering  a  stable  in  the  night-time,  and  committing 

a  larceny  therein.     Mass.  Stat.  1851,  ch.  156,  §  1,  436. 
588 


INDEX. 

LARCENY.  —  Continued. 

Breaking  and  entering  a  shop  in  the  night-time,  adjoining  to  a 

dwelling-house,    with  intent  to  commit  the  crime  of  larceny, 

and  actually  stealing  therein.     Mass.  Stat.  1839,  ch.  31,  437. 
Entering  a  dwelling-house  in  the  night-time  without  breaking, 

some  persons  being  therein,  and  being  put  in  fear.    Mass.  Rev. 

Sts.  ch.  126,  §  12,  438. 
Breaking   and   entering   a   dwelling-house  in   the   daytime,  the 

owner  being  therein,  and  being  put  in  fear.     Mass.  Rev.  Sts. 

ch.  126,  §  12,  439. 
Breaking  and  entering  a  city  hall,  and  stealing  therein  in  the 

night-time.     Mass.  Rev.  Sts.  ch.  26,  §  14,  440. 
Stealing  in  a  building  that  is  on  fire.     Mass.  Rev.  Sts.  ch.  126, 

441. 
From  the  person.     Rev.  Sts.  of  Mass.  ch.  126,  §  16,  442. 
Of  real  property.     Mass.  Stat.  1851,  ch.  151,  443. 
LARCENY  AND  EMBEZZLEMENT, 

of  public  property,  on  the  statute  of  the  United  States  of  the  30th 

April,  1790,  §  26,  444. 
Against  an  assistant  postmaster,  for  stealing  money  which  came 

into  his  hands  as  assistant  postmaster,  on  the  Act  of  3d  March, 

1825,  §,  21,  445. 
LOUISIANA, 

commencement  and  conclusion  of  indictment  in,  71. 
Information  in,  71. 

MAINE, 

commencement  and  conclusion  of  indictment  in,  19. 
MALICIOUS  MISCHIEF, 

requisites  of  indictment,  &c.,  470. 
Indictments  : 

[For  several  forms  of  Indictments  which  might  be  classed  under 

this  head,  see  213,  &c.] 
Maliciously  wounding  a  cow,  470. 
Giving  cantharides  to  prosecutors,  471. 
Tearing  up  a  promissory  note,  472. 
Cutting  down  trees  the  property  of  another,  not  being  fruit,  or 

cultivated,  or  ornamental  trees,  under  Ohio  statute,  473. 
Destroying  vegetables,  under  Ohio  statute,  474. 
Killing  a  heifer,  under  Ohio  statute,  475. 
Cutting  down  trees,  &c.,  476. 
Killing  a  steer,  at  common  law,  477. 

589 


INDEX. 

MALICIOUS  MISCHIEF.—  Continued. 

Altering  the  mark  of  a  sheep,  under  the  North  Carolina  statute, 

478. 

Second  count.     Defacing  mark,  479. 
Entering  the  premises  of  another,  and  pulling  down  a  fence, 

480. 
Destroying  two  lobster  cars,  under  the  Massachusetts   statute, 

481. 
Removing  a  landmark,  under  the  Pennsylvania  statute,  482. 
Felling  timber  in  the  channel  of  a  particular  creek,  in  a  partic- 
ular county,  under  the  North  Carolina  statute,  483. 
Throwing  down  fence,  under  Ohio  statute,  484. 
Breaking  into  house  and  frightening  pregnant  woman,  485. 
Cutting  ropes  across  the  ferry,  486. 

Breaking  glass  in  a  building.    Mass.  Rev.  Sts.  ch.  126,  §-42,  487. 
Burning  a  record,  488. 
MANSLAUGHTER.  (See  Homicide.) 

MARYLAND, 

commencement  and  conclusion  of  indictment  in,  50. 
MASSACHUSETTS, 

commencement  and  conclusion  of  indictment  in,  28-30. 
Indictments : 

Against  accessary  before  the  fact  generally,  101. 

Against  accessary  after  the  fact  generally,  102. 

Murder  in  a  duel  fought  without  the  State,  171. 

For  carnally  knowing  and  abusing  a  woman  child  under  the  age 

of  ten  years,  187. 
Mayhem,  by  slitting  the  nose,  193. 
Assault  and  battery,  Massachusetts  form,  215. 
Felonious  assault,  248. 

Felonious  assault  with  intent  to  rob,  being  armed,  250.  \ 

Assault  with  intent  to  ravish,  253. 
Having  in  possession  coining  instruments,  353. 
Having  in  possession  ten  counterfeit  pieces  of  coin,  with  intent  to 

pass  the  same,  354. 
Having  in  custody  less  than  ten  counterfeit  pieces  of  coin,  355. 
Uttering  and  publishing  as  true  a  forged  promissory  note,  356. 
For  forging  a  promissory  note  357. 
Fof  counterfeiting  a  bank  bill,  358. 

For  having  in  possession  at  the  same  time,  ten  or  more  counter- 
feit bank  bills,  with  intent  to  utter  and  pass  the  same  as  true, 

359. 

590 


INDEX. 

MASSACHUSETTS.  —  Continued. 

Passing  a  counterfeit  bank  bill,  360. 

Having  in  possession  a  counterfeit  bank  bill,  with  intent  to  pass 
the  same,  3G1. 

Making  a  tool  to  be  used  in  counterfeiting  bank  notes,  362. 

Having  in  possession  a  tool  to  be  used  in  counterfeiting  bank 
notes,  363. 

With  intent  to  use  the  same,  363. 

Counterfeiting  current  coin,  364, 

Uttering  and  passing  counterfeit  coin,  365. 

Burning  unfinished  dwelling-houses,  390. 

Setting  fire  to  a  building,  whereby  a  dwelling-house  was  burnt 
in  the  night-time,  391. 

Burning  a  dwelling  house  in  the  daytime,  392. 

Setting  fire  to  a  building  adjoining  a  dwelling-house  in  the  day- 
time, whereby  a  dwelling-house  was  burnt  in  the  daytime, 
393. 

Burning  a  stable  within  the  curtilage  of  a  dwelling-house,  394. 

Burning  a  city  hall  in  the  night-time,  395. 

Burning  a  meeting-house  in  the  daytime,  396. 

Burning  a  vessel  lying  within  the  body  of  the  county,  397. 

Burning  a  dwelling-house  with  intent  to  injure  an  insurance  com- 
pany, 398. 

Setting  fire  to  stacks  of  hay,  399. 

Burning  a  dwelling-house  in  the  night-time,  400. 

Robbery  —  the  prisoner  being  armed  with  a  dangerous  weapon, 
411. 

Robbery  —  the  prisoner  being  armed  with  a  dangerous  weapon, 
and  striking  and  wounding  the  person  robbed,  412. 

Robbery,  not  being  armed,  413. 

Attempting  to  extort  money  by  threatening  to  accuse  another  of 
a  crime,  414. 

Larceny  in  dwelling-house  in  daytime,  432. 

Breaking  and  entering  a  vessel  in  the  night-time,  and  committiiig 
a  larceny  therein,  433. 

Breaking  and  entering  a  shop  in  the  night,  and  committing  a 
larceny  therein,  434. 

Larceny  by  the  cashier  of  a  bank,  435. 

Breaking  and  entering  a  stable  in  the  night-time,  and  committing 
a  larceny  therein,  436. 

Breaking  and  entering  a  shop  in  the  night-time,  adjoining  to  a 

691 


INDEX. 

1 

MASSACHUSETTS.  —  Continued. 

dwelling-house,  with  intent  to   commit  the  crime  of  larceny, 
and  actually  stealing  therein,  437. 

Entering  a  dwelling-house  in  the  night-time  without   breaking, 
some  persons  being  therein,  and  being  put  in  fear,  438. 

Breakinor   and    entering  a  dwelling-house  in    the   daytime,  the 
owner  being  therein  and  being  put  in  fear,  439. 

Breaking  and  entering  a  city  hall,  and  stealing  therein  in  the 
night-time,  440. 

Stealing  in  a  building  that  is  on  fire,  441. 

Larceny  from  the  person,  442. 

Larceny  of  real  property,  443. 

Against  receiver  of  stolen  goods,  452. 

Against  receiver  of  embezzled  property,  455. 

Against  auctioneer  for  embezzlement,  462. 

Against  the  president  and  cashier  of  a  bank  for  embezzlement, 
466. 

Against  a  clerk  for  embezzlement,  467. 

Against  a  carrier  for  embezzlement,  468. 

Breaking  glass  in  a  building,  487. 

General   frame  of  indictment  —  form   used    in    Massachusetts, 
529. 
MAYHEM. 

Indictment  on  Coventry  Act,  22  &  23  Car.  II.  c.  1,  for  felony, 
by  slitting  a  nose,  and  against  the  aider  and  abettor,  192. 

Mayhem  by  slitting  the  nose,  under  the  Rev.  Sts.  of  Mass.  ch.  125, 
§  10,  193. 

Mayhem  by  cutting  out  one  of  the  testicles,  under  the  Pennsyl- 
vania statute,  194. 

Against  principal  in  first  and  second  degree  for  mayhem  in  bit- 
ing off"  an  ear,  imder  the  statute  of  Alabama,  195. 

Biting  off"  an  ear,  under  Rev.  Stat.  N.  C.  ch.  34,  §  48,  196. 

Maliciously  breaking  prosecutor's  arm  with  intent  to  maim  him, 
under  the  Alabama  statute,  197. 
MICHIGAN, 

commencement  and  conclusion  of  indictment,  73. 

Larceny,  form  in  use  in,  427. 
MINT,  UNITED  STATES, 

responsibility  of  officers  in,  460. 

Indictment  against  officer  of,  460. 
MISCHIEF,  (See  Malicious  Mischief.) 

592 


INDEX. 

MISSISSIPPI, 

commencement  and  conclusion  of  indictment  in,  68. 
MURDER.         (See  Homicide,  Accessaries.) 

NAVIGABLE  RIVER, 

obstructing.  (See  Nuisance.) 

NEW  HAMPSHIRE, 

commencement  and  conclusion  of  indictment  in,  22. 
NEW  JERSEY, 

commencement  and  conclusion  of  indictment  in,  41. 
Indictment  in : 

Larceny,  425. 
NEW  YORK, 

commencement  and  conclusion  in,  38. 
Indictments  in : 

Manslaughter  in  second   degree    against   captain   and   engineer 
of  steamboat,  172. 

Abduction  under,  200. 

Producing  abortion,  210. 

Assault  and  battery  in,  217. 

Assault  with  intent  to  murder,  245. 

Having  in  possession  forged  note  of  a  corporation,  328. 

Forging  an  instrument  for  payment  of  money,  330. 

Having  in  possession  forged  notes,  &c.,  with  intent  to  defraud, 
332. 

Burglary,  372. 

Larceny,  422. 

Receiving  stolen  goods,  453. 

Embezzlement,  4G4. 

Secreting  goods  with  intent  to  defraud  creditors,  507. 

False  pretences,  530. 
NORTH  CAROLINA, 

commencement  and  conclusion  of  indictment  in,  56. 
Indictments  in  : 

Biting  off  an  ear,  196. 

Forging  a  receipt,  285. 

Coining,  366. 

Larceny  of  bank  note,  428. 

Altering  mark  of  a  sheep,  478. 

Felling  timber  in  the  channel  of  a  particular  creek  in  a  particular 
county,  483. 
VOL.  I. -38  593 


INDEX. 

NOTES, 

forgery  of,  indictment  for,  260,  et  seq. 
Larceny  of,  428,  et  seq. 
NOT  GUILTY.  (See  Pleas.) 

OHIO, 

commencement  and  conclusion  of  indictment,  76-78. 
Lidictmenls : 

Murder  in  the  first  degree,  by  obstructing  a  railroad  track, 
139. 

Murder  in  the  first  degree,  by  sending  to  the  deceased  a  box  con- 
taining an  iron  tube,  gunpowder,  bullets,  &c.,  artfully  arranged, 
so  as  to  explode  on  attempting  to  open  it,  140. 

Murder  in  the  first  degree,  by  a  father  chaining  and  confining  his 
infant  daughter  several  nights  during  cold  weather,  without 
clothing  or  fire,  141. 

Second  count.     Not  alleging  a  chaining,  142. 

Rape,  upon  a  female  other  than  a  daughter  or  sister  of  the  de- 
fendant, 188. 

Rape,  upon  a  daughter  or  sister  of  the  defendant,  189. 

Rape,  abusing  a  female  child  with  her  consent,  190. 

Abduction  of  a  white  person,  201. 

Attempt  to  carry  a  white  person  out  of  the  State,  202. 

Kidnapping,  attempt  to  carry  off  a  black  person,  203. 

Attempt  to  procure  abortion  by  administering  a  drug,  212. 

Threatening  in  a  menacing  manner,  220. 

Stabbing  with  intent  to  wound,  233. 

Shooting  with  intent  to  wound,  234. 

Assault  with  intent  to  rape,  255. 

Assault  with  intent  to  rape.  Attempting  to  abuse  a  female  under 
ten  years  of  age,  262. 

Attempt  to  pass  counterfeit  bank  note,  304. 

Uttering  forged  order,  320. 

Having  counterfeit  bank  note  in  possession,  323. 

Having  in  possession  counterfeit  plates,  324. 

Secretly  keeping  counterfeiting  instruments,  325. 

Having  in  possession  counterfeit  bank  notes,  326. 

Burglary  and  larceny,  breaking  and  entering  a  stoi'e  and  stealing 
goods,  379. 

Burglary  and  larceny,  breaking  and  entering  a  meeting-house  and 
stealing  a  communion  cup  and  chalice,  380. 
694 


INDEX. 

OHIO.  —  Continued. 

Burglary,  breaking  and  entering  a  storehouse  witli  intent  to  steal, 
381. 

Burglary,  breaking  and  entering  a  shop  with  intent  to  steal,  382, 

Burglary,  breaking  and  entering  a  dwelling-house  with  intent  to 
steal,  383. 

Breaking  and  entering  a  mansion-house  in  the  daytime,  and  at- 
tempting to  commit  personal  violence,  384. 

Breaking  and  entering  a  mansion-house  in  the  night  season,  and 
committing  personal  violence,  385, 

Burning  a  flouring  mill,  401. 

Burning  a  dwelling-house,  402. 

Burning  a  boat,  403. 

Attempt  to  commit  arson  —  setting  fire  to  a  store,  404. 

Burning  a  stack  of  hay,  405. 

Cutting  down  trees  the  property  of  another  —  not  being  fruit,  or 
cultivated,  or  ornamental  trees,  473. 

Destroying  vegetables,  474. 

Killing  a  heifer,  475. 

Throwing  down  fence,  484. 

PENNSYLVANIA, 

commencement  and  conclusion  of  indictment  in,  44. 
Indictments  in : 

Involuntary    manslaughter,  by    striking   an   infant  with    a   dray, 

176. 
Misdemeanor,  in  concealing  death  of  bastard   child,  by  casting   it 

in  a  well,  182. 
Mayhem  by  cutting  out  one  of  the  testicles,  194. 
Assault  and  battery,  219. 
Forgery  by  altering  and  defacing  a  certain   registry  and   record, 

&c.,  2G8. 
Forgery  of  a  note  of  a  bank  incorporated  in,  333. 
Burning  a  barrack  of  hay,  408. 
Burning  a  stable,  409. 
Larceny,  form  in  use,  423. 
Larceny  of  bank  note,  429. 
Against  receiver  of  stolen  goods  in,  454. 
Receiving  stolen  goods  from  some  person  unknown,  456. 
Removing  a  landmark,  482. 

Breaking  and  entering  a  close,  and  cutting  down  a  tree,  498. 
Secreting  goods  with  intent  to  defraud  creditors,  507. 

595        ■ 


INDEX. 

PENNSYLVANIA.  —  Continued. 

Fraudulent  insolvency,  first  count,  pledging  goods  consigned,  and 
applying  the  proceeds  to  defendant's  use,  519. 
PERSONATION   OF    BAIL, 

indictment  for,  506. 
POISON, 

murder  by.  (See  Homicide.) 

PRINCIPAL  AND  ACCESSARY.  (See  Accessaky.) 

PRINCIPALS, 

in  first  and  second  degrees. 
Indictments  : 

In  suicide,  107,  138. 

For  shooting  with  pistol,  115. 

For  choking  deceased,  128. 
PUBLISHING   FORGED   INSTRUMENTS,   ETC. 

(See  Forgery.) 

QUICKNESS, 

how  far  essential  to  offence  of  abortion,  204,  note. 

RAPE, 

general  form,  notes,  &c.,  186. 

For  carnally  knowing  and  abusing  a  woman  child  under  the  age 

often  years.     Mass.  Stat.  1852,  ch.  259,  §  2,  187. 
Upon  a  female  other  than  a  daughter  or  a  sister  of  the  defendant, 

under  Ohio  statute,  188. 
Upon  a  daughter  or  sister  of  the  defendant,  under  Ohio  statute,  1 89. 
Abusing  female  child  with  her  consent,  under  Ohio  statute,  190. 
[For  Assaults  with  intent  to  ravish,  see  253,  &c.] 
RECEIVING   GOODS  OBTAINED    BY   FALSE   PRP^TENCES, 

indictment  for,  574. 
RECEIVING  STOLEN  GOODS, 

general  frame  of  indictment,  450. 

Against  receiver  of  stolen  goods.  Mass.  Rev.  Sts.  ch.  126,  §  20,  452. 

Same  in  New  York,  453. 

Same  in  Pennsylvania,  454. 

Against  a  receiver  of  embezzled  property.     Mass.  Stat.  1853,  ch. 

184,  455. 
Stolen  goods  from  some  unknown  person,  in  Pennsylvania,  456. 
Same  in  South  Carolina,  457. 
Same  in  Tennessee,  458. 

Soliciting  a  servant  to  steal,  and  receiving  the  stolen  goods,  459. 
696 


INDEX. 

RECORD, 

indictment  for  burning,  488. 
Forging.  (See  Forgeiiy.) 

RESIDENCE  OF  DEFENDANT, 

how  to  be  set  out,  2,  note. 
RHODE  ISLAND, 

commencement  and  conclusion  of  indictment  in,  35,  &c. 
ROBBERY, 

general  frame  of  indictment  at  common  law,  410. 

Robbery  —  the  prisoner  being  armed  with  a  dangerous  weapon. 

Mass.  Rev.  Sts.  ch.  125,  §  15,  411. 
Robbery  —  the  prisoner  being  armed  with  a  dangerous  weapon, 

and  striking  and  wounding  the  person  robbed.     Rev.   Sts.  of 

Mass.  ch.  125,  412. 
Robbery  —  not  being  armed.  Rev.  Sts.  of  Mass.  ch.  125,  §  15,  413. 
Attempting  to  extort  money  by  threatening  to  accuse  another  of 

a  crime.     Rev.  Sts.  of  Mass.  ch.  125,  §  17,  414. 

SECRETING,  ETC., 

with  intent  to  defraud,  &c.,  507. 

Second  count.    Same,  with  intent  to  defraud  and  prevent  such 
property  from  being  made  liable  for  payment  of  debts,  508. 
Third  count.     Same,  not  specifying  property,  509. 
Fourth  count.     Averring  intent  to  defraud  persons  unknown, 

510. 
Fifth  count.     Same,  not  specifying  goods,  with  intent  to  de- 
fraud persons  unknown,  511. 
Sixth   count.     Same,  with  intent  to  prevent  property  from 
being  levied  on,  512. 
Another  form  on  the  same  statute. 

First   count,  intent  to  defraud,  to  prevent  property  being 

made  liable,  &c.,  513. 
Second  count.     Same,  with  intent  to  defraud  another  person, 

514. 
Third  count.     Secreting,  assigning,  &c.,  with  intent  to  de- 
fraud two,  &c.,  515. 
Fourth  count.     Secreting,  &c.,  averring  creditors  to  be  judg- 
ment creditors,  516. 
Fifth  count.     Same,  in  another  shape,  517. 
Fraudulent  conveyance  under  Statute  Eliz.  c.  5,  s.  3,  518. 
SELLING   BY   FALSE   WEIGHT, 
indictment  for,  499. 

697 


INDEX. 

SLITTING  NOSE, 

indictment  for,  193. 
SODOMY, 

general  form  of  indictment  for,  191. 

Kequisites  of  indictment,  191. 
SOLICITING, 

servant  to  steal,  &c.,  459. 
SOUTH  CAROLINA, 

commencement  and  conclusion  of  indictment  in,  59,  &c. 
Indictments  in : 

Assault  with  intent  to  murder,  249. 

Larceny,  426. 

Receiving  stolen  goods  from  some  unknown  person,  457. 
STABBING.  (See  Assault.) 

STEALING.  (See  Larceny.) 

STOLEN   GOODS, 

receiving.  (See  Receiving  Stolen  Goods.) 

SUICIDE. 

Indictment  against  party  aiding  suicide,  as  principal   in  second 
degree,  107. 

Giving  deceased  poison,  and  thereby  aiding  her  in  suicide,  138. 

TENNESSEE, 

commencement  and  conclusion  of  indictment  in,  88. 
Indictments  in : 

Larceny  of  bank  note,  431. 

Receiving  stolen  goods  from  some  unknown  person,  458. 
TICKET  IN   LOTTERY.  (See  Lottery.) 

TIMBER, 

indictment  for  felling  in  creek,  483. 
TIME, 

how  to  be  pleaded,  2,  note. 
TOKEN, 

false.    (See  False  Pretences,  Cheats  at  Common  Law,  etc.) 
TREE, 

indictment  for  cutting  down,  &c.,  476. 
TRESPASS.  (See  Malicious  Mischief.) 

UNDERWRITERS, 

defrauding,  by  destroying  vessel  at  sea,  575. 
UNITED  STATES  COURTS, 

commencements  and  conclusions  of  indictments  in,  3. 
698 


INDEX. 

UNITED   STATES    COURTS.  —  Continued. 

Conimeiicement  in  Massachusetts  where  the  offence  was  com- 
mitted on  board  of  an  American  vessel,  within  the  jurisdiction 

of  a  foreign  state,  3. 
Same  wliere  the  offence  was  committed  on  an  American  vessel 

within  the  jurisdiction  of  the  United  States,  4. 
Same  where  the  offence  was  committed  on  the  high  seas  on  board 

of  an  American  vessel,  5. 
Same  where  offence  was  committed  on  high  seas  on  board  of  a 

vessel  whose  name  was  unknown,  belonging  to  an  American 

citizen  whose  name  is  given,  6. 
Same  where  offence  was  committed  by  a  person  belonging  to  a 

vessel  owned  by  American  citizens  whose  names  ai'e  known, 

the   vessel  at  the  time  lying  in  the  jurisdiction  of  a  foreign 

state,  7. 
Same  where  offence  was  committed  in  navy  yard,  8. 
Same  where  offence  was  committed  in  arsenal  or  armory,  9. 
Commencement  in  Southern  District  of  New  York,  10. 
Commencement  in  Eastern  District  of  Pennsylvania,  11.  - 
Commencement  in  District  of  Virginia,  12. 
Conclusion  in  District  of  Massachusetts,  13. 
Conclusion  in  Southern  District  of  New  York,  14. 
Conclusion  in  Eastern  District  of  Pennsylvania,  15. 
Conclusion  in  District  of  Virginia,  16. 
Final   count   averring  jurisdiction   in,  17,    18,    181,   note,  239, 

note. 
Final   count  where  the   offender  was   first  apprehended  in  the 

particular  district,  17. 
Final  count  where  the  offender  was  first  brought  into  the  partic- 
ular district,  18. 
Stabbing  and  drowning  on  high  seas,  147. 
Another  form  for  same,  with  commencement  and  conclusion  as 

adopted  in  New  York,  177. 
Murder  by  striking  with  a  handspike,  with   commencement  and 

conclusion  as  adopted  in  Pennsylvania,  178. 
Murder    by   striking  with    a    glass    bottle    on  ^forehead,    with 

commencement  and  conclusion  as  adopted  in  Massachusetts, 

179. 
Murder  against  a  mother  for  drowning  her  child  on  Long  Island 

Sound,  180. 
Murder  with  a  hatchet,  181. 

599 


INDEX. 

UNITED    STATES    COURTS.  —  Continued. 
Murder  by  drowning,  122. 
'  Assault  with  beating  and  wounding  on  high  seas,  231. 
Assault  on  high  seas  by  binding  prosecutor  and  forcing  an  iron 

bolt  down  his  throat,  232. 
Same  with  dangerous  weapon,  235. 
Another  form  for  same,  236. 

Same  in  foreign  port,  the'  weapon  being  a  Spanish  knife,  237. 
Forging  a  certificate  granted  by  collector  of  customs,  305. 
Forging  and  counterfeiting  American  coin,  336. 
Passing  same,  338. 
Attempting  to  pass  the  same,  340. 
Forging  &c.,  half  dollars,  341. 
Passing  same,  342. 
Forging  foreign  coin,  345. 
Passing  same,  347. 

Debasing  U.  S.  coin  by  person  employed  in  mint,  348. 
Diminishing  same,  349. 
Larceny  in  navy  yard  of  U.  S.,  417. 
Larceny  on  high  seas,  418. 

Larceny  on  American  ship  at  the  Bahama  Islands,  420. 
Larceny  by  assistant   postmaster  of  money,  &c.,  445. 
Larceny  of  public  property  of  U.  S.,  444. 

Destroying  vessel  at  sea  with  intent   to   defraud   underwriters, 
576.. 

VERMONT, 

commencemei^and  conclusion  of  indictment  in,  25. 
Indictments  in : 

Uttering  and  passing  a  counterfeit  bank  bill,  319. 

Having  in  possession  forged  note  of  United  States  Bank,  327. 

Counterfeiting  U.  S.  coin,  352. 

Burning  meeting-house,  406. 
VESSEL, 

destroying  at  sea  with  intent  to  defraud  underwriters,  575. 
VIRGINIA, 

commencement  and  conclusion  of  indictment  in,  53. 
Indictment  in : 

Fofgery  of  a  note  of  a  bank  in  another  State,  335. 

WEIGHT. 

Indictment  for  selling  by  false  weight,  499. 
600 


